ORDER
Gowri Shankar, Member (T)
1. Duty of Rs. 39.45 lakhs approximately (out of which Rs. 5 lakhs has been deposited) and penalty of Rs. 41.45 lakhs approximately are required to be deposited by the assessee, and penalty of Rs. 5 lakhs to be deposited by Pankaj Rungta, the assessee’s director.
2. The duty has been demanded, and penalty imposed, on the view that the nylon monofilament yarn that the applicant manufactured does not qualify for the exemption contained in entry 96 of notification 4/97. The entry exempts nylon monofilament yarn of specified denierage classifiable in heading 5404.10 from duty. The case in the Commissioner’s order is that what the assessee cleared was nylon monofilament and not nylon monofilament yarn.
3. After hearing the representative of the applicant and the departmental representative, we are prima facie unable to agree that there is a difference between nylon monofilament specified in heading 54.04 and the nylon monofilament yarn specified in the relevant entry of the exemption notification. Yarn is defined in the McGraw-Hill Dictionary of Scientific and Technical Terms as “a continuous strand of two or more plies of carded or combed fibres twisted together, or a single filament of natural or synthetic fibres used for weaving or knitting.” The Explanatory Notes to the Harmonised System of Nomenclature explain, in the notes to heading 54.04 which is for synthetic filament yarn other than sewing thread, including synthetic monofilament of less than 67 decitex. The Commissioner’s finding that monofilament yarn has to be in continuous length is no doubt true, but is answered by the assessee that it clears it in running length. The fact that such monofilament yarn may ultimately be put to use for making such articles as bristles for brushes does not prima facie detract from the fact that what was cleared was monofilament in running length. The Commissioner does not stay what the distinction between monofilament and monofilament yarn is so that it can be said that the two are distinct commodities.
4. On this prima facie view of the matter, we waive deposit of the duty and penalty and stay their recovery. As the issue is recurring, we list the appeal for hearing on 27th August, 2003.