M/S. HINDUSTAN ZINC LTD.versusCOMMISSIONER OF CENTRAL EXCISE, JAIPUR

A                         MIS. HINDUSTAN ZINC LTD.
                                          v.
               COMMISSIONER OF CENTRALEXCISE, JAIPUR ·

                              FEBRUARY 24, 2005

B    [~.N. VARIA VA, DR. AR. LAKSHMANAN AND S.H. KAPADIA, JJ.]



         Central' Excises and Salt Act, 1944 :

          'Silver Chloride '-Declared as excisable goods-Assessee claiming
C exemption under Notification No. 217186-CE dt. 2.4.1986-Held, Revenue
    having failed to prove marketability of the item produced by assessee during
    the relevant period, question of applicability of the notification has become
    academic, and is kept open.

D         On the question whether in the event of silver chloride being declared
    as .excisable goods the assessee was entitled to benefit of exemption under
    Notification No. 217/86-CE dt. 2.4.1986.

         Disposing of the appeal, the Court

         HELD : In view of the judgment in the conjoint Civil Appeal No.
E 430 of 2000 holding that the department had failed to prove marketability
    of silver chloride produced in the factory of the assessee, duri11.g the
    relevant period, the question of applicability of the said notification during
    that period has become academic and is kept open. (399-C-D)

F        Mis. Hindustan Zinc Ltd v. Commissioner of Central Excise, Jaipur,
    (2005) 2 SCR 391, relied on.

         CNIL APPELLATE JURISDICTION: Civil Appeal No. 3991 of200l..

         From the Judgment and Order dated 23.1.2001 of the Central Excise,
G Customs and Gold (Control) Appellate Tribunal, New Delhi, in F.O. No. 61
    200 l-C in A. No. E/2164 of 2000-C.

          V. Lakshmikumaran, Alok Yadav, M.P. Devnath and V. Balachandran
    for the Appellant.

H                                        398
              HINDUSTAN ZINC LTD. v. C.C.E. (KAPADIA. J.]                   399

     R. Venkataramani, A.Subba Rao, Hemant Sharma, Ashok Panigrahi,                 A
Ms.V. Vijaylakshmi, P. Parmeswaran and B.K. Prasad, with him for the
Respondent.

       The Judgment of the Court was delivered by

       KAPADIA, J. The short question which arises for determination in this        B
civil appeal filed by the assessee under section 35L(b) of the Central.Excise
Act, l 944 is whether in the event of the silver chloride being declared
"excisable goods", the assessee was entitled to the benefit of exemption
under notification No. 217/86-CE dated 2.4.1986.

       In view of our judgment in the conjoint civil appeal No. 430 of 2000         C
in the case of the same assessee holding that the department had failed to
prove marketability of silver chloride produced in the factory of the assessee,
during the relevant period(s), the question of applicability of the said
notification during" that period has become academic. In future, if the
department succeeds in proving that silver chloride produced .in the factory        D
of the assessee as "excisable goods" in terms of manufacture and marketability
and if the assessee intends to take the l;>enefit of the said notification, then,
the question is kept open and the decision given by the tribunal herein will
not preclude the assessee from relying on the above notification in accordance
with law.
                                                                                    E
       Subject to above, the appeal is disposed of with no order as to co5ts.

R.P.                                                       Appeal disposed of.