ORDER
Gowri Shankar, Member(T)
1. The appeal is against the order of the Collector (Appeals), setting aside, on an application filed by the department under Section 35F of the Act, the order of the Assistant Collector approving the price list filed by the manufacturer for captive consumption of Rs. 60.48 per kilogram for aluminium hydroxide gel. In that order, the Collector (Appeals) has accepted the contention of the department that since the manufacturer had for the same product, filed a price list in Part I showing a value Rs.125/- per kilogram, that price, which was the value under Section 4(1)(a) should be applied for valuation of that part of the product which was captively consumed.
2. The appellant is absent and unrepresented despite notice issued to its designated address. No request for adjournment has been received. We have therefore read and considered the submissions in the memorandum of appeal and heard the departmental representative.
3. The first ground is that the application under Section 35F filed before the Collector (Appeals) was not maintainable because the direction under Section 35E is communicated to the Assistant Collector on 21st December, 1992, beyond the time limit of 12 months available for this purpose. Sub-section (3)of Section 35F provides only that an order directing the adjudicating authority to apply shall not be made after the expiry of one year after passing of the order. There is no contention in the appeal that such an order was made not within this period. We are unable to accept this ground.
4. The next ground is that the price of Rs.125/- per kilogram was charged to one class of buyers, namely government laboratories,and those goods which were consumed by their manufacture were sent to industrial buyers. This ground is misplaced. The question of different prices for different classes of buyers arise only if the value is determined under Section 4(1)(a); where the goods are captively consumed, there being no sale, the value is fixed not under Section 4(1)(a)but under Section 4(1)(b) by applying the Valuation Rules. Sub-rule (b) of Rule 6 provides that the value shall be based on the value of comparable goods sold by the manufacture of the goods being valued, or any other assessee. It is the first of these values that has been applied.
5. We are unable to accept the contention that the order of the Assistant Collector was not an appealable order under the relevant provisions. No evidence is cited in support of the claim that the product is exempted under Chapter 30 of the tariff. The last ground is that the profit earned by the appellant should be deducted in arriving at the value. The provision for including the profit is contained in Rule 6(b)(2) which provides that the value of goods captively consumed shall be determined on the cost of their production. This sub-rule applies where sub-rule (1) does not apply.The value having been determined under sub-rule (1), the second sub-rule would not come into the picture. We therefore see no reason to interfere.
6. Appeal dismissed.