TMI Blog1987 (2) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... aluminium foil (only heat-seal coated), they claimed the benefit of Notification No. 173-Cus/77. The Assistant Collector rejected the claim recording, inter alia, as follows :- The party has elaborately argued that the contents of aluminium in respect of the foil imported by them. While it is not defined that the purity is of definitely 97% but the point for consideration is whether the foil is laminated and coated or plain. This Notification, against which concessional assessment is only extended for aluminium foil which is plain. Assessment already made is in order and the claim is rejected." 2. Aggrieved, the appellants filed an appeal before the Appellate Collector. He rejected the appeal by an order, which is reproduced below :- I have carefully gone through the appeal petition as well as copy of order impugned therein. The appellant had sought concessional rate of duty under 173/77-Cus., notification, under which aluminium manufacturers containing more than 97% aluminium are liable to basic Customs duty 27.5% instead of at 100% + 20% AD and CVD. Their claim was rejected by lower authority on the ground that the notification applies only to plain aluminium foil wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inium content was calculated with reference to the whole product, which was wrong because the resin and paper - which form part of the product - were accessory material to aluminium foil. Shri Engineer averred that the imported goods could not be considered as a composite-product (as held by the Appellate Collector), and submitted that the Customs accepted the Bill of Entry description of the goods as manufactures of unalloyed aluminium (aluminium foil). Assessment was also done accordingly. Shri Engineer argued that there cannot be two standards - one for assessment and another for the purposes of the Notification. Comparing the words used in Notification Nos. 67/79 and-No. 173/77, Shri Engineer submitted that plain aluminium foil is covered by Notification No. 67/79, whereas Notification No. 173/77 covered aluminium manufacture. Pointing out the difference, Shri Engineer submitted that the Assistant Collector mis-read the two Notifications. 5. The learned Counsel argued that the calculation of percentage of aluminium should be based on the aluminium part of the foil and not on the total weight of the product. Further, if the imported goods were to be considered as a composi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the product and not to the purity of the aluminium used, and submitted that the Assistant Collector s order referred only to the purity of the aluminium whereas the Appellate Order clearly recorded an admission by the appellants that , the aluminium content was 60 - 65% only. Shri Gopinath relied upon two orders of the Tribunal - both in respect of the same appellants. These orders were (1) No. 1153/76-B2; and (2) No. 1154/86-B2, both dated 18-11-1986. He submitted that the only difference between the present case and the cited appeals was that, in the present case, the aluminium foil was coated with paper whereas in the cited cases, there was polythene coating.9. Shri Engineer, in his rejoinder, submitted that Note-5 to Section XV referred to composite articles consisting of two metals whereas, in the present case, the imported goods consisted of only one metal. He further submitted that the present appeal is distinguishable from the facts of the case of M/s. Pfizer Ltd., Bombay (supra), and also the two other cases cited by the SDR. 10. We have considered the arguments of both sides. 11. The arguments of the appellants are built up on the premise that the imported goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, being satisfied that it is necessary in the public interest so to do, hereby exempts plain aluminium foil of the thickness of 0.02 mm to 0.04 mm. containing more than 97 per cent of aluminium and falling within Chapter 76 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India from the whole of the Additional duty leviable thereon under Section 3 of the second mentioned Act, subject to the condition that the exemption contained herein shall be applicable only to those importers who produce a certificate issued by the Director General of Technical Development to the effect that :- (i) the importer has an approved programme for the manufacture of drugs and medicines; and (ii) the aluminium foil thus imported will be used only for strip-packing of drugs and medicines. 2. This notification shall be in force upto and inclusive of the 30th June, 1979." Notification 173 refers to aluminium manufactures containing more than 97% of aluminium. This word could have only one meaning, namely, that the manufacture should have 97% or more of aluminium. This percentage could only be in respect of weight or the contents. In the present case, it is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants, since the aluminium foil used in the imported goods is plain, Notification No. 67/79 covers it. We had already discussed and found that the imported goods are composite articles. One of the meanings of the word plain is without addition (Chamber s Twentieth Century Dictionary). In this, the aluminium foil has not been imported as it is, but lamination and heat seal coating have been added to it. We, therefore, reject the claim for refund under Notification No. 67/79. If the imported goods are not unalloyed aluminium, the correct classification would be 76.03/04(1) and not sub-item 2 thereof. We have examined this argument keeping in mind the submissions made by both the sides. It appears that Interpretative Rule 2(b) read with Rule 3(b) are applicable to composite articles, like the imported goods. We reproduce these two rules :- 2(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such materia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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