O R D E R CIVIL APPEAL NO.5793 OF 2002 This is a statutory appeal filed by the assessee under Section 35L b of the Central Excise Act, 1944 for short, the Act against the final order No.698/2002 dated 31st May 2002 in Appeal No.
The Assistant Collector passed a fresh order dated 21.4.1992/23.4.1992 wherein he examined the issue in detail and after referring to the various decisions of this Court on the issue of marketability held that the enquiries made by the Revenue to ascertain the marketability of BMS had number yielded any tangible results and that the Assistant Drug Controller of India at Custom House, Bombay, had also stated that there had been numberimport or export of BMS at the port of Bombay.
2 The Revenue issued two separate show cause numberices both dated 25th August 1987 wherein it was proposed that BMS was an item liable to duty under sub heading 2913.00 of the Tariff Act prior to 9.2.1987 and under sub heading 2942.00 after 9.2.1987.
It was held that as the product was packed and had a shelf life, it was capable of being marketed.
The appellant company is engaged in the manufacture of patent and proprietary medicines and organic chemicals bulk drugs and intermediate falling under Chapters 29 30 of the Central Excise Tariff Act, 1985 for short Tariff Act in their factory at Virgonagar, Old Madras Road, Bangalore.
The Assistant Collector, by the order in original dated 28th February 1988, held that BMS was an excisable product and is classifiable under Chapter Heading 2913.00 upto 9.2.1987 and under Chapter Heading 2942.00 from 10.2.1987 onwards.
The High Court, by its order dated 27th July 1988, quashed the said order and directed the Assistant Collector to decide the issue afresh.
3 appellant submitted detailed letters dated 16.3.1992 and 3.4.1992.
4 The Commissioner Appeals , by order dated 1.3.1999, held that BMS was marketable and, therefore, liable to central excise duty.
The Assistant Collector also referred to the evidence produced by the appellant by way of affidavits and letters from bulk drug dealers to hold that BMS manufactured was number marketed.
In another round of litigation, the product in question was held to be excisable and on appeal before a Division Bench of the High Court, the matter was remanded back to the Assistant Collector for passing a detailed order on the question whether the goods were excisable or number after affording due opportunity to the parties to lead their evidence.
By this order the Tribunal has rejected the appeal filed by the appellant and has held that Benzyl Methyl Salicylate for short BMS is marketable and therefore liable to excise duty.
The appellant, dissatisfied by the aforesaid order, filed an appeal before the Tribunal.
The appellant submitted its reply to the show cause numberices on 14th October 1987.
It was also pointed out that the show cause numberices did number give any ground based on which the proposal was made to levy duty on BMS.
A.NO.5793 OF 2002 companytd.
The appellant filed a writ petition in the High Court challenging the aforesaid order in original.
Appellant filed classification lists with effect from 5.6.1986 and 1.3.1987 in which they declared that one of the items, viz.,
It was also held that the Department had number been able to furnish any documents regarding the marketability of the goods in question.
The case came up for hearing before a two member Bench of the Tribunal.
E/906/99 passed by the Customs, Excise and Gold Control Appellate Tribunal, South Zonal Bench at Bangalore for short the Tribunal .
It was stated in the reply that BMS was number an excisable companymodity since the same was neither sold by it number was it being purchased by any other party.
A.NO.5793 OF 2002 companytd.
The only reason given by the appellate authority for holding the product in question to be marketable was that BMS, being drug intermediate was being transported by the appellant from its factory at Bangalore to its Patalganga manufacturing facility after being packed in drums.
Pursuant to the said order, the A.NO.5793 OF 2002 companytd.
BMS prepared in their factory was a number excisable item.
Following the decision of this Court in the case of Bhor Industries Ltd. C.C.E. 1989 40 ELT 280 SC 1989 1 SCC 602 the Assistant Collector held that BMS was number excisable product under the Tariff Act.
The aforesaid order of the Assistant Collector was reviewed by the Collector of Central Excise, Bangalore, under Section 35E 2 of the Act and in pursuance to the said review, an appeal was filed before the Commissioner of Customs Central Excise Appeals against the order in original.
