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Mahakali Plastic Weave Pvt. Ltd. Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1983)LC1966DTri(Delhi)
AppellantMahakali Plastic Weave Pvt. Ltd.
RespondentCollector of Central Excise
Excerpt:
.....been relied upon by the assistant collector to come to the conclusion that it was covered by that item. shri kapil argued that reliance on this explanation, which brought in explanation ii to item no. 19 by reference, was misconceived because (a) that explanation was applicable only where two or more fibres in a fabric were equal in weight (which was not the position here); and (b) the fibres referred to in that explanation did not include paper. as we are unable to find any such reference in the assistant collector's order, further comments on this point are not necessary.4. shri kapil also submitted that the appellant's case was squarely covered by the decision of the government of india as revisional authority in their order dated 17-9-80 in the case of messrs board & paper.....
Judgment:
1. This is an appeal against the order of the Collector of Central Excise (Appeals), Bombay, relating to the classification under the Central Excise Tariff Schedule of two products manufactured by the appellants. These have been described in the order-in-original as "various types of products obtained by lamination of one or two layers of paper with one or two layers of jute with bitumen as bonding agents". Specifically, two varieties of goods are concerned. The first is one consisting of two layers of paper with one layer of hessian in between with bitumen as a bonding agent. The other consists of one layer of paper with one layer of hessian, with bitumen again being the bonding agent. The lower authorities have held that the goods were classifiable under sub-item (2) of Item 17 of the Central Excise Tariff Schedule, as "paper-board and all other kinds of paper". As against this, the appellants contend that the goods are classifiable under Item 22A ibid as "jute manufactures".

2. Appearing for the appellants, Shri Kapil submitted that in both varieties of the product, the weight of the hessian was 65 to 70% of the total weight of the product. In this connection he relied on the letter dated 25-9-80 addressed by the appellants to the Collector, in which they have quoted the Superintendent of Central Excise, Range 10, as having informed them, after having tests carried out that the proportion of jute was 72% in one case and 61% in the other. This statement was not controverted by Shri Tayal, appearing on behalf of the Department, and we have therefore assumed that it is not contested.

In other words, the two products may be taken to be goods in which jute predominates in weight. Shri Kapil drew attention to the description in Item 22A, which runs as follows :- "Jute manufactures (including manufactures of Bimlipatam jute or mesta fibre), all sorts, not elsewhere specified in which jute (including Bimlipatam jute or mesta fibre) predominates in weight." "Paper-board and all other kinds of papers (including paper or paper-boards which have been subjected to various treatments such as coating, impregnating, corrugation, creping and design printing), not elsewhere specified." He contended that, in the absence of any such amplification of the description of Item 17 on the lines of Item 22A, the former Item could cover only articles made wholly of paper, and would not therefore cover the products of the appellants.

3. Shri Kapil also referred to the Explanation under Item 22A, which according to him had been relied upon by the Assistant Collector to come to the conclusion that it was covered by that Item. Shri Kapil argued that reliance on this Explanation, which brought in Explanation II to Item No. 19 by reference, was misconceived because (a) that Explanation was applicable only where two or more fibres in a fabric were equal in weight (which was not the position here); and (b) the fibres referred to in that Explanation did not include paper. As we are unable to find any such reference in the Assistant Collector's order, further comments on this point are not necessary.

4. Shri Kapil also submitted that the appellant's case was squarely covered by the decision of the Government of India as revisional authority in their order dated 17-9-80 in the case of Messrs Board & Paper Converters, Bangalore, reported in 1980 ELT 788. That case related to a product in which one layer of hessian was sandwiched between two layers of kraft paper by means of bitumen which acted as an adhesive and it contained approximately 70% hessian by weight. It was noted in the order that Item 22A covered jute manufacturers in which jute predominates in weight, and that this description would cover the goods. The Govt. of India also took note that the goods were known in the trade as hessian sandwich paper. They further noted that Item 17(2) covered all kinds of paper but did not cover paper products. In the result the Govt. of India accepted the contention of the appellants that the goods were classifiable under Item 22A.5. The appellants had also raised a point that the demand in this case was hit by limitation. However, before going into this issue, we asked Shri Tayal to reply on the main issue of classification.

6. For the Department, Shri Tayal submitted that Item 17(2) covered "All sorts of paper and paper-board". According to him this Item would cover even paper which was lined with other materials. He pointed out that sub-item (2) referred to paper which had been subjected to treatments such as coating on impregnation.

7. Shri Tayal cited the decision of the Madras High Court in the case of Light Roofings Ltd., reported in 1981 ELT 738. That case related to bitumenised paper roofing material. It was held that by immersing into bitumen the paper mat did not cease to be a product of paper.

8. Shri Tayal also argued that Item 22A referred to "jute manufacturers, all sorts, not elsewhere specified", whereas Item 17 referred to "Paper and paper-board, all sorts" with no "Not elsewhere specified" clause. Therefore, according to him, Item 17 would have to prevail over Item 22A in a disputed case.

9. We have carefully considered the issue. There is no dispute on the question that in these products jute clearly predominates in weight. By giving due weight to the description in Item 22A, the goods have a strong claim to be included within that Item. The fact that it is qualified by the clause "Not elsewhere specified" would not affect this position, so far as the present products are concerned. In the absence of any Explanation in Item 17, the description "paper-board and all other kinds of paper" cannot be held to include a product in which as much as two-thirds of the total weight is made up of material other than paper. As pointed out by Shri Tayal, Item 17(2) no doubt includes paper or paper-boards which have been subjected to treatments such as coating or impregnation. However, it clearly cannot be said that a product made by laminating paper and jute is one subjected to coating, impregnation, etc. Further, as already mentioned, it would be very far-fetched to treat such a product as a kind of paper, in the absence of any specific provision to that effect. We do not, therefore, consider that Item 17(2) can be said to be a specific description for the goods under consideration, or even a more specific description than that in Item 22A. The description in the latter Item appears to cover the goods squarely. This is also the view which was taken by the Government of India as revisional authority.

10. Shri Tayal submitted that, even if we were inclined to hold that in this case Item 17(2) was not applicable, the position might have undergone a change later, in view of a subsequent amendment to Item 17.

That amendment, whatever its effect might be, is subsequent to the period covered by the present case, namely 5-8-1979 to 22-1-80. We would make it clear that our decision in this case is confined to the period mentioned above, and that we have not had occasion to consider the position after the amendment.

11. In view of our conclusion that the goods were properly classifiable under Item 22A as claimed by the appellants, it was not necessary for us to consider their plea of limitation, and we have not done so.

12. In the result, we hold that during the material period the goods under consideration were classifiable under Item 22A. We accordingly allow the appeal and set aside the demand for duty.


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