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TMI Blog2011 (5) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... hich were received on duty paid invoices. The flats were cut into pieces and converted into pattas/pattis by hot-rolling. During the impugned period the Appellants had made two sales of pattas/pattis to outside buyers. Mostly the Appellants were clearing circles on payment of duty to outside buyers and also using circles manufactured by them in manufacture of utensils within the same factory. Circles for such use was exempt from duty under sub-heading 7222.50 but the Appellant continued to pay duty on such circles and claimed SSI exemption under Notification 9/98-CE which was for SSI units wanting to avail Modvat credit. 2. According to the Revenue, aluminum circles captively used in the manufacture of utensils was exempt from duty and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar circles sold by them to unrelated buyers. The Appellant did not succeed before Commissioner (Appeal) because he ruled that the value of patta/patti should be taken because circles captively consumed were exempt and the only sales of patta/patti were under invoice 71 and 74. Against the order of Commissioner (Appeal) an Appeal was filed before the Tribunal which was decided by Final Order No. 741/03-NB(A) dated 23-12-03. During the hearing in Tribunal the issue raised was that the sale under invoices 71 and 74 were stray sales and the goods sold under these two invoices were of higher quality than that used by them in the manufacture of utensils; that they had 34 other invoices issued during the relevant period wherein the value of such g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of adjudication based on the value of pattas/pattis sold under the invoices 71 and 74. 8. Aggrieved by the order the Appellant filed an appeal with Commissioner (Appeal). The Appellant did not get any relief except that the duty paid at the stage of circles and waste and scrap manufactured out of pata/patti was allowed to be set off. Further, he set aside the penalty imposed. Aggrieved by this order the Appellant is before the Tribunal. 9. The Counsel for the Appellant has been able to demonstrate that the goods covered by invoices 71 and 74 in fact related to patta/patti manufactured from 3.830 MT stainless steel strips purchased by them at the rate of Rs. 40500 per MT under invoice no. 07638 dated 09-09-1998 from Jindal Strips Ltd, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not mentioned or discussed in any of the orders passed earlier. We also want to record that this is a case where the assessable value is determined by Revenue based on the value of goods of different quality and prima facie there is a case of excess demand for duty. 13. Now let us examine the relevant legal provisions in this regard during the relevant time. During the relevant time the value as per section 4 of CE Act was the normal price thereof that is to say the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade. If such normal price was not ascertainable for the reason that such goods were not sold the nearest equivalent of such price was to be ascertained as per the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such adjustments as appear to him reasonable, taking into consideration all relevant factors and, in particular, the difference, if any, in the material characteristics of the goods to be assessed and of the comparable goods; (ii) if the value cannot be determined under sub-clause (i) on the cost of production or manufacture including profits, if any, which the assessee would have normally earned on the sale of such goods: (c) where the assesee so arranges that the excisable goods are generally not sold by him in the course of wholesale trade except to or through a related person and the value cannot be determined under clause (iii) of the proviso to clause (a) of sub-section (1) of Section 4 of the Act, the value of the goods so sold s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of following the Rules is shown by arguing that price of pattas/pattis and not the price of circles is to be considered since the goods to be valued is pattas/patties and not circles. While giving this argument the lower authorities are making an error in judgment by considering that pattas/patties made from raw material of a different quality is more of a similar goods than circles made from raw material of the same quality as the material being valued. Since this Appellant has been contesting the issue for about a decade with the backing of all needed records, we do not want to send this case back for another fresh consideration. 16. In the facts and circumstances of the case we hold that the correct rule to be applied in this case was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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