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CASE NO.: Appeal (civil)  3991 of 2001

PETITIONER: M/s Hindustan Zinc Limited               

RESPONDENT: Commissioner of Central Excise Jaipur.                                   

DATE OF JUDGMENT: 24/02/2005

BENCH: S.N. VARIAVA,Dr. AR. LAKSHMANAN & S.H. KAPADIA  

JUDGMENT: J U D G M E N T

KAPADIA, J.

       The short question which arises for determination in this  civil appeal filed by the assessee under section 35L(b) of the  Central Excise Act, 1944 is \026 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 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 of the assessee as "excisable goods" in terms of  manufacture and marketability and if the assessee intends to  take the benefit 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.  

       Subject to above, the appeal is disposed of with no order  as to costs.