ORDER

Delay condoned.

2. The leaned Solicitor General appearing for the Department fairly states that the Department does not question the correctness of the judgments in Moti Laminates Pvt. Ltd. & Ors. v. Collector of Central Excise1, and Union of India & Anr. v. Delhi Cloth and General Mills Co. Ltd. & Anr.2, insofar as the issue of marketability is concerned.

3. Tariff Item 73.08 of the Central Excise Tariff covers structures and parts of structures, as therein stated (which are, for convenience, referred to as "structurals").

4. It was for the Tribunal to determine, as a fact, whether the structurals that the Department sought to make exigible to excise duty in the various appeals before it were new, identifiable goods which were produced as a result of manufacture or processes and which were marketable. Depending upon its conclusion on these aspects in each of the appeals before it, it was for the Tribunal to determine whether or not the goods in question in each of these appeals were exigible to excise duty.

5. In the judgment and order of the Tribunal that is under challenge the Tribunal has failed to consider the facts of even a single of the appeals before it. It has proceeded