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TMI Blog2010 (9) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... count on the packing materials. The classification dispute relates to (i) yarn made out of 100% Polyester waste; (ii) yarn made out of Acrylic Staple Fibre/Non-cellulosic Soft waste (Polyester waste) and Viscose staple fibre; and (iii) yarn made out of Polyester and Viscose waste and (iv) yarn made out of duty paid components of Non-cellulosic Soft waste/viscose/polyester film in different blends and counts. 3. The appellants are engaged in the manufacture of yarn classifiable under Chapter Heading 55 of the Central Excise Tariff Act, 1985. The appellants were clearing the final products either through their own depots or through their nominated C&F Agents located at different parts of the country. The sale price through the depots differed from the sale price at the factory gate. The appellants claimed certain deductions to arrive at the assessable value. Show Cause Notice came to be issued demanding differential duty along with interest. After hearing the parties, the Adjudicating Authority disallowed the claim for cash discount in relation to packing material and confirmed the differential duty along with interest payable thereon by passing different orders in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment while to add the similar amount to the price in case of sale on credit. In that regard, attention was drawn to the order passed in appellant's own case in Order-in-Appeal No. 491/2003 on 31st December, 2003 whereby the similar cash discount was held to be deductible from the assessable value and further that the same finding being not inferred with by the Tribunal, though the said order was subjected to challenge in appeals Nos. 251/2005 and 521/2005 and, therefore, it is submitted that the lower authorities had no justification to take a different view in appellants' own matter merely because those related to different period. Attention is also drawn to the Certificate issued by the Chartered Accountant confirming about such cash discount. 7. As regards the classification aspect is concerned, the learned Advocate for the appellants, drawing our attention to the decision of the Tribunal in the matter of Collector of Central Excise v. Priyadarshini Spinning Mills Ltd. reported in 1990 (50) E.L.T. 145 and the Board's Circular No. 23/90 dated 1st November, 1990 fairly submitted that the claim of the appellants in relation to (i) yarn made out of 100% polyester waste and (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elate to the aspect relating to the claim of exemption benefit. He has however, submitted that the matter in relation thereto will have to be decided primarily by the Adjudicating Authority and for that purpose, the matter will have to be remanded to the concerned authority. 10. As regards the classification aspect, it is rightly submitted by the learned Advocate for the appellants that the issue stands concluded by the decision of the Tribunal in Priyadarshini Spg. Mills (supra) case and in Atlantic Spinning and Weaving Mills (supra) case. The products in question are clearly classifiable under Chapter sub-heading 55.05. Obviously, therefore, it is necessary for the authority to ascertain whether the appellants are entitled for exemption benefit or not. The appellants have claimed benefit of exemption under Notification No. 53/91-C.E. dated 25-7-1991. The impugned orders nowhere disclose any consideration on this aspect. Evidently, the authorities had no occasion to consider the same, as the classification was not under Heading 55.05. Once the products are held to be classifiable under the said heading, the provisions of the said Notification would get attracted. It is there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the goods were cleared on credit. In our considered opinion, this by itself cannot lead to the conclusion that the same to be termed as cash discount. To the specific query with the learned Advocate in this regard, it was fairly submitted that apart from the invoices using the said phraseology and policy statement in relation to the period from April 1994 onwards which was filed in another case, there is no material which could lend support to the contention of the appellants that the arrangement, which is followed by the appellants, would justify the claim of the appellants that such an amount to be considered as cash discount. 13. The very expression 'cash discount, 'discloses certain part of the consideration for the product, which was otherwise required to be paid to the manufacturer is surrendered in favour of the customer. The material placed on record in the case in hand discloses the position totally contrary to this type of procedure, which is normally followed. In the case in hand, it discloses collection of extra amount by the appellants in relation to the goods cleared on credit. Being so, it is difficult to accept the contention on the part of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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