Customs, Excise and Gold Tribunal - Delhi
Mafatlal Fine Spg. And Mfg. Co. Ltd. vs Collector Of C. Ex. on 2 June, 1999
Equivalent citations: 1999(113)ELT141(TRI-DEL)
ORDER
P.C. Jain, Vice President
1. Short question in both the Appeals, one of which viz., M/s. Mafatlal Fine Spinning & Mfg. Co. Ltd. is represented by ld. Advocate Shri M.P. Baxi and the other case is desired by the appellant to be decided on merits. Question involved is whether the 'slivers' as described by both the assessees are classifiable under Tariff Heading 55.02 as found by the adjudicating authority or that they are non-marketable.
2. After having heard both sides and after going through the impugned order, we observe that the adjudicating authority has essentially based his findings on the Explanatory Notes to HSN under Heading 55.06 (corresponding to Central Excise Tariff Heading 55.02) which speaks of "Synthetic Staple Fibres, carded and combed or otherwise processed for spinning".
3. The adjudicating authority, in view of the submissions of both the appellants herein appears to have sent an Asstt. Collector to find out the position whether the process of combing is undertaken by the assessees or not. The finding of the Asstt. Collector, which is recorded in the impugned order, is that there is a facility of combing in the carding stage itself.
4. At this stage, ld. Advocate for M/s. Mafatlal Fine Spinning & Mfg. Co. Ltd., pointed out that no Officer had visited their Mill and it is very categorically stated by them that they did not have any combing facility in carding or subsequent stage when they get the slivers from the carding machine. There is no combing facility at all as stated earlier. They had further pointed out that these carded slivers which were obtained, from which the yarn is spun, are not marketable at all. In support of their plea, they have enclosed opinions of (a) Dr. S.G. Vinzankar, Vice Principal and Head of Textile Department, VJTI, Mumbai and (b) Opinion of Bombay Textile Research Association, based on the report, after the visit of one Mr. D. Mukhopadhyay, M. Tech., Senior Scientific Officer, to Mafatlal Textiles.
5. On a query from the Bench, ld. Advocate fairly states that the aforesaid two opinions were not before the adjudicating authority. These opinions have become necessary to be filed by the appellants herein to rebut the findings of the adjudicating authority on the visit by the Asstt. Collector which apparently did not take place in their factory.
6. In view of the foregoing facts and circumstances, we are of the view that the these matters are fit for remand. There is a dispute on facts whether the combing facility is available in the units of the two appellants before us or not. While no doubt, the adjudicating authority has referred to the report of the Asstt. Collector after a visit by him but we do not find on record any report submitted by the Asstt. Collector and there is only a passing references in the impugned order about Asstt. Collector's finding and also there is no reference to it in the Show Cause Notice. On the other hand, one of the appellants herein has submitted two opinions as mentioned above that they do not have any combing facility and that they have not undertaken any combing to convert the slivers into tops making the product marketable. Accordingly, we set aside the impugned order and direct the adjudicating authority to decide afresh after making a personal visit to the two factories or by sending an expert who should visit the factories, with due notice to the appellants, so that a report can be submitted regarding the existence of facilities of combing in the two appellants factories or not. In the above facts and circumstances, appeals are allowed by remand in terms of the aforesaid directions.
7. Question of limitation will be open before the adjudicating authority in de novo proceedings.