COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, BANGALOREversusMIS KARNATAKA SOAPS & DETERGENTS LTD.

                           [2017) 10 S.C.R. 148


A     COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX,
                      BANGALORE
                                     v.
           MIS KARNATAKA SOAPS & DETERGENTS LTD.
B                  (Civil Appeal Nos. 4822-4825 of2015)
                           OCTOBER 12, 2017
           [MADAN B. LOKUR, S. ABDUL NAZEER AND
                     DEEPAK GUPTA, JJ.]

c        Central Excise Tariff Act, 1985 - Chapter Sub-Heading
  3302.90 of First Schedule - Exemption of excise duty on perfiunery
  compound - Odoriferous compound prepared by the respondent
  was applied to agarbathis to complete the process of manufacture
  of agarbathis - The Central Board of Excise and Customs issued a
  circular in 1999 which clarified that the odor(ferous substance, not
D capable of being bought and sold in the market in the normal course
  of trade, was not excisable - Before that, respondent was paying
  excise duty with respect to these odoriferous compounds and paid
  till March 2001 - Consequently, show cause notices issued to
  respondent to pay excise duty for period 2001-2002 to 2006-2007-
E Additional Commissioner of Ce/ltral Excise passed orders holding
  that the Board~· circular was not applicable to the respondents and
  hence was liable to pay excise duty - Orders confirmed by the
  Appellate authority - However, CESTAT set aside the said orders -
  Held: Respondent manufactures perfumery compound in its
  Bangalore unit and then tramports it to Mysore where it is finally
F applied to raw agarbathis to complete the manufacturing process
  of agarbathi - In this process of manufacturing, the perfumery
    compound is capable of being sold in the open market - Appellant
  fwd even sold some part of the compound to Mis. 'THC' - Evidently,
  clarification given by the circular is applicable to the product which
G comes into existence, at intermediate stage in the form of pastel
  dough in a continuous process of manufacture and not to the
  manufacture of odoriferous perfume, which is in liquid form and
  has got shelf life and capable of being stored/transported/sold -
  Circular cannot be equated with that of an exemption notification
  but is required to be read within the limited scope of its context in
H
                                    148
  CCE & SERVICE TAX, BANGALORE v. M/S KARNATAKA                        149
             SOAPS & DETERGENTS LTD.

which it was issued - Circular clarifying certain doubts cannot give   A
effect of an exemption notification - Therefore, it cannot be said
that agarbathi compound manufactured by the respondent is covered
under the aforesaid circular - Central Excise Act, 1944.
       Central Excise Tariff Act, 1985 - Chapter Sub-Heading
3302. 90 of First Schedule - Whether actual marketing of the B
pe1fumery compound manufactured by the respondent is necessary
for the levy of excise duty - Held: Marketability is a question of
fact to be decided on the facts of each case - There can be no
generalization - The fact that goods are not in fact marketed is of
no relevance - It is also not necessary that the goods in question
should be generally available in the market - The marketability or
                                                                       c
articles does not depend neither upon the number of purchasers
nor is the market confined to the territorial limits of this country -
In instant case; the perfumery compound prepared by the
respondent has got a shelf life and is capable of being stored/
transported/sold and bought by agarbathi industries - Respondent D
had even sold certain quantity of the compound to Mis. 'THC' -
Therefore, the compound in question is a excisable product falling
under Chapter Sub-heading 3302.90.
      Allowing the appeals, the Court
       HELD: 1. The circular in question is issued in the context      E
of dispute with regard to dutiability/excisability of mixture, viz.
aromatic chemicals (perfumes) which is also classifiable as
odoriferous compound, under Central Excise Tariff and comes
into existence during the co.urse of manufacture of agarbathis, in
a continuous process, as an intermediate product. The circular         F
clarifies that odoriferous substances are not marketable because
these products are not sold by manufacturers in order to protect
their trade secret. The circular by way of illustration also stated
that the whole process of manufacturing agarbathi, that is
preparation of the odoriferous compounds and their mixing with
the dough or agarbathi is normally carried out in a continuous         G
manner since the whole process is continuous. These odoriferous
substances do not remain with the manufacturer to be sold in the
market. [Para 8] [154-G-H; 155-A]
      1.2 The Central Excise Chapter Heading No. 3302.90
covers all types of mixtures of odoriferous substances of a kind,      H
150          SUPREME COURT REPORTS                    [20171 IO S.C.R.


A used as raw materials in industries. It is clear from the records
  that respondent does not manufacture agarbathi as per general
  practice which has been contemplated under the circular in
  question. The respondent manufactured perfumery compound
  in its Bangalore unit and then transported it to Mysore where it
  is finally applied to raw agarbathis to complete the manufacturing
B
  process of agarbathi. In this process of manufacturing, the
  perfumery compound is capable of being sold in the open market.
  It is not in dispute that appellant has sold some part of the
  compound to M/s. Tibetan Handicrafts Centre, Bylkuppe, Mysore
  District. [Para 9] [155-B-C]
c       1.3 Evidently, the clarification given by the circular is
  applicable to the product which comes into existence, at
  intermediate stage in the form of paste/dough in a continuous
  process of manufacture and not to the manufach•re of odoriferous
  perfume, which is in liquid form and transported/stored in barrels/
D drums. The said circular cannot be made applicable to cases
  beyond its scope. The circular cannot be equated with that of an
  exemption notification but is required to be read within the limited
  scope of its context in which it was issued. The circular did not
  give exemption to products which are otherwise dutiable. The
  circular clarifying certain doubts cannot give effect of an exemption
E notification. Therefore, it cannot be said that the agarbathi
  compound manufactured by the respondent is covered under the
  aforesaid circular. [Para 10] [155-D-F]
        2. To hold the product as excisable/dutiable, actual
  marketing/sale of goods is not necessary. What is required to be
F proved is the capability of marketing the product. Marketability
  is decisive test for dutiability. Whether the goods are, in fact,
  marketed or not is of no relevance. It is also not necessary that
  goods in question should be generally available in the market.
  Even if the goods are available from only one source or from a
G specified market, makes no difference so long as they are
  available for purchasers. [Para 11] [155-F-H]
        3. In the instant case, the assessee-respondents
  manufactures agarbathi perfumes (odoriferous compound) by
  mixing inputs, aromatic chemicals, perfume oil and acids according
H to the pre-determined formula. It is prepared by the respondents
  CCE & SERVICE TAX, BANGALORE v. MIS KARNATAKA                          151
             SOAPS & DETERGENTS LTD.

in their Bangalore factory and then transferred to their Mysore          A
factory where finally it is applied on raw agarbathis. In this process
of manufacturing, the perfumery compounds are capable of being
sold in the open market. The odoriferous compound has got a
shelf life and capable of being stored/transported/sold and bought
by agarbathi industries. The assessee had sold certain quantity          B
of perfumery compound to Mis. Tibetan Handicrafts Centre
Bylkuppe, Mysore District. Therefore, it is an excisable product
falling under Chapter Sub-Heading 3302.90. [Para 13] [156-D-F]
      A.P. State Electricity Board v. Collector of Central
      Excise, Hyderabad (1994) 2 SCC 428 : [1994] 1 SCR
      499; Escorts Limited v. Commissioner of Central Excise,            c
      Faridabad (2015) 9 SCC 109 : [2015] 5 SCR 241 -
      referred to.
                       Case Law Reference
[1994] 1 SCR 499              referred to             Para 11
                                                                         D
[2015] 5 SCR 241              referred to             Para 12
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4822-
4825 of2015.
      From the Judgment and Order No. 1339-42 of 2010 dated
11.11.2010 of the Customs, Excise and Service Tax Appellate Tribunal,
South Zonal Bench, Bangalore in Appeal No. E/37,313,816,394/2008.        E
      P. S. Narsimha, ASG, K. Radhakrishnan, Sr. Adv., Rajiv Nanda,
Ms. Nisha Bagchi, B. Krishna Prasad, Advs. with them for the
Appellants.
      Ms. L. Charanya, V. Lakshmikumaran, Aditya Bhattacharya,
Victor Das, Ms. Apeksha Mehta, M. P. Devanath, Advs. for the             F
Respondent.
      The Judgment of the Court was delivered by
      S. ABDUL NAZEER, J. 1. These appeals raise two questions,
namely:
                                                                         G
       (i) Whether the Board's Circular No.495/61/99-CX.3, dated
       22.11.1999 exempts payment of excise duty on perfumery
       compound manufactured by the respondent; and
       (ii) Whether actual marketing of the perfumery compound is
       necessary for the levy of excise duty.
                                                                         H
152             SUPREME COURT REPORTS                         [2017] IO S.C.R.


A             2. The respondent is a manufacturer of agarbathi perfumes. The
      agarbathi perfumes are odoriferous compound prepared by the respondent
      in its Bangalore unit and then transported to its Mysore unit, where it is
      applied to agarbathis to complete the process of manufacture of
      agarbathis. The respondent was paying excise duty with respect to
      these odoriferous compounds till March 2001 as this substance is covered
B
      under Chapter Sub-Heading 3302.90 of the First Schedule to the Central
      Excise Tariff Act, 1985. The Central Board of Excise and Customs (for
      short 'the Board') issued the aforesaid circular which clarified that the
      vdoriferous substance, not capable of being bought and sold in the market
      in the normal course of trade, is not excisable. The respondent transferred
c     the odoriferous compounds to its Mysore unit on stock transfer basis.
      Some part of the compounds was sold to Mis. Tibetan Handicrafts Centre,
      Bylkuppe, Mysore District.
          3. The Additional Commissioner of Central Excise, Bangalore-
  III, issued show-cause notices calling upon the respondent to pay excise
D duty along with penalty and interest at the appropriate rates under Sections
  !IA, llAB and !!AC of the Central Excise Act, 1944 (for short 'the
  Act') for the period 2001-2002 to 2006-2007. These notices were
  contested by the respondent. The Additional Commissioner passed orders
  holding that the Board's circular dated 22.11.1999 is not applicable to
  the respondent and hence the respondent is liable to pay excise duty,
E penalty and interest thereon in respect of odoriferous substance prepared
  by it. These orders were confirmed by the appellate authority in the
  appeals filed by the respondent. The respondent challenged the said
  orders before the CESTAT, South Zonal Bench, Bangalore. The CESTAT
  has allowed the appeals and set aside the said orders to the extent they
F uphold the demand of duty, interest thereon and the penalty imposed on
  the appellant for which there was no evidence of sale. The Revenue has
  challenged the legality and correctness of the said orders in these appeals.
        4. Appearing for the Revenue, Sri P.S. Narasimha, learned
  Additional Solicitor General, submits that the rate of duty to be paid on
G the perfumery compounds is clearly mentioned under Chapter Sub-
  Heading 3302.90 of the First Schedule to the Central Excise Tariff Act,
  1985 and it is on this rate that the respondent used to pay duty till March,
  2001. The respondent is, therefore, not entitled to the benefit under the
  ambit of the circular dated 22.11.1999. The respondent does not
  manufacture agarbathi as per the general practice which has been
H
   CCE & SERVICE TAX, BANGALORE v. MIS KARNATAKA                               153
    SOAPS & DETERGENTS LTD. [S. ABDUL NAZEER, J.]

contemplated under the circular dated 22.11.1999. The respondent               A
manufactures perfumery compounds in its Bangalore unit and then
transports them to its Mysore unit where it is finally applied to raw
agarbathis to complete the manufacturing process of agarbathis. In this
process of manufacturing, the perfumery compounds are capable of
being sold in the open market.
                                                                               B
        5. It is further submitted that CESTAT erroneously devised a
test of actual sale of the odoriferous substance to hold that in the absence
of actual sale of such substance, no excise duty could be levied on the
same. It is argued that the respondent has sold the Venkateshwara
Brand agarbathi perfumery compound to Tibetan Handicrafts Centre
vi de invoice Nos. 9 and 33 dated 11.5.2004 and 10.8.2004 respectively.
                                                                               c
The CESTAT ought to have appreciated that although the final product,
i.e. the agarbathi, is exempted, the intermediate product has got
marketability.
       6. On the other hand, Ms. L. Charan ya, learned counsel appearing
for the respondent-assessee submits that the perfumery compound                D
manufactured by the respondent and the stock transferred to their Mysore
unit for use in particular brands of agarbathis is non-excisable as per the
Board circular dated 22.11.1999. It is further contended that the
perfumery compound manufactured as such, is not marketed by the
respondent. Therefore, it does not attract excise duty. She prays for          E
dismissal of the appeals.
        7. We have carefully considered the submissions of the learned
counsel for the parties. The basic issue is with regard to the exciseability
of the product, viz. agarbathi perfume also called as odoriferous compound
which is used in manufacture of agarbathis sold in the market. The             F
Board vi de its circular clarified that such odoriferous compound mixed
with dough is not excisable. For better understanding, the Board's circular
is as under:
        "The Board's Circular No.495/61/99-CX.3 dated 22.11.1999:
        Subject: Excisability of Odoriferoous compound/ Agarbathi mix          G
        arising during the course of manufacture of Agarbathi -
        Regarding.
        It has been brought to the notice of the Board that field formations
        are demanding duty on the compound preparation arising during
                                                                               H
154                   SUPREME COURT REPORTS                       [2017] 10 S.C.R.


A                the course of manufacture of Agarbathi classifying them under
                 Heading 3302.90 of the Central Excise Tariff as odorifaous
                 compound.
                 2.     The matter has been examined in the Board. The Agarbathi
                        manufacturing process involves simple mixing of a few
B                       aromatic chemicals with a base oil in a container in liquid
                        form which is mixed directly with the dough or applied on
                        Agarbathi in the required proportion and such dough, mixed
                        with the aromatic compound; is used for rolling of Agarbathi.
                        TheAgarbathi manufacturers normally carry out the whole
                        process in a continuous manne~ in the course of
c                       manufacture of Agarbathi.
                 3.     Moreover, each brand of Agarbathi has a different fragrance
                        which is on account of the different formulation used by
                        the manufacturers which is specific to that particular brand.
                        Preparation of such odoriferous compound, substances
D                       applied on the Agarbathi varies from one Agarbathi
                        manufacturer to another. Such preparations are not sold
                        by them in the market so as to keep their respective trade
                        secrets. As the constituents, their proportions and formula
                        of preparation are kept as secret, such compounds cannot
E                       be considered to be marketable in the commercial parlance.
                 4.     Accordingly, it is clarified that the odoriferous compound
                        or Agarbathi dough mixed with odoriferous substances, not
                        being capable of being bought and sold in the market in the
                        normal course of trade, is not an excisable product and no
F                       duty is therefore, leviable on such compound arising during
                        the course of manufacture of Agarbathi."
         8. The above circular is issued in the context of dispute with
  regard to dutiability/excisability of mixture, viz. aromatic chemicals
  (perfumes) which is also classifiable as odoriferous compound, under
G Central Excise Tariff and comes into existence during the course of
  manufacture of agarbathis, in a continuous process, as an intermediate
  product. The circular clarifies that odoriferous substances are not
  marketable because these products are not sold by .manufacturers in
  order to protect their trade secret. The circular by way of illustration
  also stated that the whole process of manufacturing agarbathi, that is
H preparation of the odoriferous compounds and their mi11.ing with the dough
           r.,
   CCE & SERVICE TAX, BANGALORE v. M/S KARNATAKA                           155
    SOAPS & DETERGENTS LTD. [S. ABDUL NAZEER, J.]

or agarbathi is normally carried out in a continuous manner since the      A
whole process is continuous. These odoriferous substances do not remain
with the manufacturer to be sold in the market.
      9. The Central Excise Chapter Heading No. 3302.90 covers all
types of mixtures of odoriferous substances of a kind, used as raw
materials in industries. It is clear from the records that respondent does B
not manufacture agarbathi as per general practice which has been
contemplated under the circular dated 22.1.1.1999. The respondent
manufactured perfumery compound in its Bangalore unit and then
transported it to Mysore where it is finally applied to raw agarbathis to
complete the manufacturing process of agarbathi. In this process of C
manufacturing, the perfumery compound is capable of being sold in the
open market. It is not in dispute that appellant has sold some part of the
compound to Mis. Tibetan Handicrafts Centre, Bylkuppe, Mysore District.
       10. Thus, it is evident that the clar-ification is applicable to the
product which comes into existence, at intermediate stage in the form of
paste/dough in a continuous process of manufacture and not to the D
manufacture of odoriferous perfume, which is in liquid form and
transported/stored in barrels/drums. The said circular cannot be made
applicable to cases beyond its scope. The circular cannot be equated
with that of an exemption notification but is required to be read within
the limited scope of its context in which it was issued. The circular did E
not give exemption to products which are otherwise dutiable. The circular
clarifying certain doubts cannot give effect of an exemption notification.
Therefore, it cannot be said that the agarbathi compound manufactured
by the respondent is covered under the aforesaid circular.
      · 11. The next question for consideration is whether actual marketing F
ofthe'perfumery compound manufactured by the respondent is necessary
for the levy of excise duty. It is settled that to hold the product as
excisable/dutiable, actual marketing/sale of goods is not necessary. What
is required to be proved is that the capability of marketing the product.
Marketability is decisive test for dutiability. Whether the goods are, in
fact, marketed or not is of ilo relevance. It is also not necessary that G
goods in question should be generally available in the market. Even if
the goods are available from only one source or from a specified market,
makes no difference so long as they are available for purchasers. (See
A.P. State Electricity Board v. Collector of Central Excise,
Hyderabad, (1994) 2 SCC 428.)                                               H
156            SUPREME COURT REPORTS                    [2017) 10 S.C.R.


A         12. In Escorts Limited vs. Commissioner of Central Excise,
  Faridabad, (2015) 9 SCC 109, this Court has held that for excise duty to
  be chargeable under the constitutional entry read with Section 3 of the
  Central Excise Act, two prerequisites are necessary. First, there must
  be "manufacture" which is understood to mean the bringing into existence
  of a new substance. And secondly, the word "goods" necessarily means
B that such manufacture must bring into existence a new substance known
  to the market as such which brings in the concept of marketability in
  addition to manufacture. 'Marketability' is thus essentially a question of
  fact to be decided on the facts of each case. There can be no
  generalisation. The fact that goods are not in fact marketed is of no
c relevance. So long as the goods are marketable, they are goods for the •
  purposes of Section 3 of the Act. It is also not necessary that the goods
  in question should be generally available in the market. The marketability
  of articles does not depend neither upon the number of purchasers nor is
  the market confined to the territorial limits of this country.
D         13. In the instant case, the assessee manufactures agarbathi
  perfumes (odoriferous compound) by mixing inputs, aromatic chemicals,
  perfume oil and acids according to the pre-determined formula. It is
  prepared by the respondents in their Bangalore factory and then
  transferred to their Mysore factory where finally it is applied on raw
  agarbathis. In this process of manufacturing the perfumery compounds
E are capable of being sold in the open market. The odoriferous compound
  has got a shelf life and capable of being stored/transported/sold and
  bought by agarbathi industries. As noticed above, the assessee had sold
  certain quantity of perfumery compound to Mis. Tibetan Handicrafts
  Centre Bylkuppe, Mysore District. Therefore, we are of the view that
F it is an excisable product falling under Chapter Sub-Heading 3302.90.
  The counter view taken by the CESTAT cannot be justified. Hence, the
  appeals are allowed and the orders dated 11.11.2010 passed by the
  CESTAT are hereby set aside. No costs.


G     Ankit Gyan                                           Appeals allowed.