2005 INSC 0220
                                    SUPREME COURT OF INDIA

                                            Hindustan Zinc Ltd.

                                                      Vs.

                                Commissioner of Central Excise, Jaipur

                                           C.A.No.3991 of 2001

                   (S. N. Variava, Dr. A. R. Lakshmanan and S. H. Kapadia JJ.)

                                                 24.02.2005

                                               JUDGEMENT

S.H.Kapadia, J.

1. 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 - 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.

2. 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.

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

         Order accordingly.

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