ORDER
G.A. Brahma Deva, Member (J)
1. These are two appeals filed by the appellants, M/s. Super Syncotex (India) Ltd., Gulabpura against the common impugned order dated 23-4-1998 passed by the Commissioner of Central Excise (Appeals), New Delhi.
2. The appellants are engaged in the manufacture of man-made yarn falling under Chapter 55 of the Schedule to the Central Excise Tariff Act, 1985. Shri R. Swaminathan, Consultant submitted that the dispute is in respect of determination of the value of the yarn in question. He submitted that there is wide fluctuation in the pricing of the yarn during the course of the day and the appellants had adopted the price equivalent at the time of sale for paying duty on the yarn cleared to their fabric division. Due to fluctuation in the prices, they were not aware of the price during the course of the day and they could not realise the price at which the yarn could be sold during the course of the day. The declarations were filed after actual sale price was ascertained. Referring to the order-in-original, Shri Swaminathan submitted that while determining the value of the yarn, the adjudicating authority has taken into consideration the highest value of the yarn. In the circumstances, he submitted that with reference to the ‘K’ quality which is inferior, the assessing authority has taken the rate of fresh quality in determining the value which was not correct. On the other hand, Shri P.K. Jain, learned DR drew our attention to the finding portion of the order of the Assistant Commissioner at page 4 and the relevant portion is as under :-
“As regards assessee’s contention that the value of certain type of yarn described as ‘Seconds’, ‘Mix quality’ and ‘K quality’ has been taken into consideration the highest value of identical yarn though the said yarn was of inferior in quality, it was observed that nearest value has been taken into consideration for the purpose of assessment of duty either on the basis of same quality of identical count and blend of yarn which has been sold at factory gate. It is further observed that the M.M. Yarn of different varieties have been sold at different rates on the same day, therefore, the rate nearest to the date of clearance has been correctly taken for assessment of duty. The assessee has failed to produce any supporting documents/evidence how they have categorised the yarn as ‘Seconds’ etc. and the same was of inferior in quality. It is also observed that there is much difference between the rates at which such yarn was cleared and of identical count and blend of yarn.”
3. Shri Swaminathan also submitted that from 1-4-1994 onwards, the value of each quality was determined taking into consideration value of the very identical yarn and same should be adopted for the period in question.
4. We have carefully considered the submissions made by both sides. In the order passed by the Assistant Commissioner, the Assistant Commissioner has observed that the M.M. yarn of different varieties are being sold at different rates on the same day, therefore, the rate nearest to the date of clearance has been correctly taken for assessment of duty. According to the party, the appellants have cleared the following qualities of yarn, namely,
(a) Fresh
(b) Seconds
(c) ‘K’ quality
(d) Short weight lots
(e) Mixed quality
In view of these different qualities of yarn, the assessing authority has to examine whether same quality of identical count and blend of yarn was cleared by the assessee while determining the value. Since this position is not clear from the respective orders passed by the authorities below, we are of the view that this matter will have to go back for fresh consideration. Accordingly, we are remanding the case to the jurisdictional Assistant Commissioner to examine afresh and to determine the value of each yarn depending upon the very item if it was cleared on that day or to take into consideration the comparable goods, if any, and to pass an order in accordance with law after providing an opportunity to the appellants. Thus, these two appeals are allowed by way of remand.
