TMI Blog2005 (3) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants argue that the coated board is used for printing and is therefore specifically covered by the description under sub-heading 4810.10 which reads Paper and Paperboard of the kind used for writing, printing or other graphic purposes. They argue that the residuary entry i.e. 4810.90 meant for other is not attracted. We agree that if Heading 4810.10 wants to cover coated board as well, it should have been specifically mentioned therein. The appellants argue that because they are printing something on the paperboard, it is a kind used for printing, but the fact remains that the goods in question are coated paperboard and not merely paperboard. We are of the opinion that coated paper goods are rightly classifiable under sub-heading 4810.90 as residuary item and plain paper boards (without coating) are covered under 4810.10. Thus, the appeal is disposed of in the following terms : (a) Value of the goods in question is to be determined in accordance with the principles of costing in CAS-4 and the judicial pronouncements. (b) Profit should be added to the cost of production on notional basis and not on the basis of profit earned by the Group of Companies as a whole. (c) HLCs and C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by them viz. distinction as between cost of sales and cost of production. In view of the above, I do not venture in to discuss on "cost of sales" and "cost of production" inasmuch as Rule 6(b)(ii) would refer only to "cost of production". In my considered view, if the main aspect of Section 4 is applied the same will only lead to "value" being considered from amongst sale price for the goods available at the factory gate. Therefore, if the intention of the legislature under Section 4 is to consider "normal price" from amongst sale price available at the factory gate, I would consider that the attempt even under Rule 6(b)(ii) should be to find out through the said provision the possible sale price. Therefore, without going into individual items discussed in the order-in-original and also in the appeal memorandum, I hold that as the Assistant Commissioner has tried to find out the value based on what would be the selling price. His view should be accepted". 4.It is evident from the Commissioner's finding that value arrived at on the basis of the product's selling price is correct way of determining the value of the captively consumed goods. This is hotly contested by the Sr. Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court in the case cited supra. 8.The other issue is percentage of profit that should be added while computing value under Rule 6(b)(ii). There is no doubt, Rule 6(b)(ii) contemplates addition of profit if any. The learned Sr. Counsel conceded that element of profit should be added while arriving at the value. He, however, strongly objected to the way the Commissioner (Appeals) determined the quantum of profit to be added. In the impugned order, the Commissioner (Appeals) took into consideration the overall profit earned by the Group as a whole for the purpose of determining the quantum of profit to be added. The appellants' contention however, is that profit earned by the Group of Companies cannot be considered simply because there was no separate balance sheet for the appellants' Company showing either profit or loss. In such a situation, according to the appellants, notional profit reasonably consistent with the activity of the appellants should be taken into consideration for the purpose of addition to the cost of production. He has also relied upon the decision of the Bangalore Bench of the Tribunal in the case of ITC v. CCE, Bangalore vide final order Nos. 1289-1291/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the original authority and not merely depended on the CESTAT'S decision cited supra. She further argued that the impugned goods are not perforated or cut to shape which fall under Heading 7607.30. The impugned goods are different both in description and nature. Since the very fact that they are backed with aluminium foil, they should be rightly classified under Heading 76.07 and not under specific Heading 7607.30 She also emphasised that the goods are classified in accordance with description and since the nature and type of the goods involved in the CEGAT decision cited supra are different from the impugned goods, the fact that the decision of the Bangalore Bench of the Tribunal, even when set aside by the Apex Court, does not have any bearing on the classification of the goods on merits. The goods accordingly are correctly classifiable under sub-heading 7607.90. 13.After taking into consideration the rival contentions we hold that the impugned goods are rightly classifiable under Heading 7607.90 as the Aluminium foils are neither perforated nor cut to shape. The Apex Court while setting aside the order of the Tribunal has specifically observed that since there is specific he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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