TMI Blog2000 (1) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-heading No. 7607.60 of the Central Excise Tariff, which covered Aluminium Foil - backed. In appeal, the Revenue had pleaded that in the product in question the Aluminium Foil was only a constituent material, and that therein plastics predominated in weight and it retained its character in the said product. It has also been pleaded that sub-heading No. 7607.60 would not cover Aluminium Foil which was laminated on both the sides. It was also submitted that the reliance placed by the adjudicating authority on the Explanatory Notes to the Harmonised Commodity Description and Coding System (HSN) was correct, and that the decisions rendered in the context of old Central Excise Tariff were not relevant for interpreting the entries in the new Tariff. Reference had been made to the Tribunal's decision in the case of Indian Textile Paper Tube Co. v. Collector of Central Excise - 1991 (53) E.L.T. 356 (Tribunal) wherein it has been observed that entry in the old CET was not to be interpreted with reference to new Central Excise Tariff, effective from 28-2-1986. The Tribunal's decision in the case of BPL Pharmaceuticals Pvt. Ltd. v. CCE, Baroda - 1994 (69) E.L.T. 798 (Tribunal) was also m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the authorities below had not looked into the product characteristics carefully. He referred to the Supreme Court's decision in the case of Commissioner of Central Excise, Trichy v. Neycer India Ltd. - 1999 (114) E.L.T. 373 (S.C.) = 1999 (35) RLT 660 (SC) and pleaded for remand of the matter. In reply Shri J.P. Khaitan, Advocate referred to the product characteristics and submitted that the product in question was for packing of the food articles and that the essential character to the same was provided by the Aluminium foil. The backing of the plastic/polyester film on both the sides of the aluminium foil was for re-inforcing the foil which in its nature was a thin material for use in the preparation of pouch. He submitted that the product in question was not a plastic plate/sheet, etc., but was aluminium foil backed on both the sides by other materials and that the Explanatory Notes under Chapter 39 referred to by the adjudicating authority were not applicable to the product in question. It was his submission that as all the facts are before the Tribunal and as there is no dispute on facts, there was no ground for remanding the matter. He pleaded for rejection of both the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acteristics for which the product was valued were neither imparted to it by the polyester film nor by the transparent HDPE film. It was valued for its aluminium foil component. 6.The issue for consideration is the classification of such a product. The ld. Commissioner of Central Excise (Appeals) had held that the product in question was correctly classifiable under sub-heading No. 7607.60 of the Central Excise Tariff. The Asstt. Commissioner of Central Excise, who had earlier adjudicated the matter had classified the same under sub-heading No. 3920.39 of the said Tariff. 7.Heading No. 76.07 covered aluminium foil under the Chapter for aluminium and articles thereof. It was described in Heading No. 76.07 that aluminium foil even when backed with plastics would remain classified therein. Heading No. 76.07 covers the following : - 76.07 Aluminium foil (whether or not printed or backed with paper, paper board, plastics or similar backing materials) of a thickness (excluding any backing) not exceeding 0.2 mm 7607.10 Plain 7607.20 Embossed 7607.30 Perforated or cut of shape 7607.40 Coated 7607.50 Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... polyethylene was classifiable under sub-heading No. 7606.00 or as laminated paper falling under sub-heading No. 4811.29 of the Central Excise Tariff. In that product, the base paper was 265 gm. per sq. metre, aluminium foil was 18 gm. per sq. metre, and polyethelene was 103 gm. per square metre. The product consisted of paper coated on one side with polyethelene, and the aluminium foil sandwiched between two layers of polyethelene film, on the other side. According to the report of the Chemical Examiner referred to in para-3 of the decision, the product was found to be aluminium foil backed on one side with paper and on the other side with the polyethelene film. In para-9, the Tribunal held as under : - "9. It is seen that the production of the disputed product involves printing of paper followed by coating of the printed side with polyethylene and laminating of the other side with a combination consisting of aluminium foil sandwiched between two layers of polyethelene. Evidently the product in question can also be described as consisting of aluminium foil reinforced with plastic material (polyethelene) and backed with paper, paper-board. Under these circumstances and in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uare) shape with a thickness not exceeding one-tenth of the width. - of a shape other than rectangular or square, of any size provided that they do not assume the character of articles or products of other headings. Heading Nos. 76.06 and 76.07 apply inter alia to plates, sheets, strips and foil with patterns (for example, grooves, ribs, chequers, tears, buttons, lozenges) and to such products which have been perforated, corrugated, polished, or coated, provided that they do not thereby assume the character of articles or products of other headings.' It was held that the aluminium foil pouch used as container for containing tobacco, coffee, powder, etc., was classifiable under Heading No. 76.12. The present product in question was in flat form and was usable for making the foil pouch classifiable under Chapter 76. Thus, this Tribunal's decision confirms that the aluminium foil which is backed by plastics both inside and outside of aluminium foil will continue to be covered by Chapter 76 of the Tariff. 9.The Asstt. Commissioner of Central Excise, whose order has been reversed by the appellate authority had classified the product under consideration in sub-heading No. 3920. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, its bulk, quantity, weight or value or by the role of a constituent material in relation to the use of the goods. No general principles could be laid-down as to how and in what circumstances Rule 2(a) of the Rules for interpretation could be pressed into service for assessment of the particular goods. In each case the factors enumerated in the Explanatory Notes would have to be taken into consideration individually and then collectively to determine whether the article had the essential character for classification under a particular Heading (refer Tribunal's decision in the case of Bharat Heavy Electricals Ltd. v. CC, Madras - 1987 (28) E.L.T. 545 (Tribunal). It is also seen that Rule 1 of the general rules for the interpretation of the Tariff is of general application providing that for legal purposes classification shall be determined according to the terms of the headings and any relative section or Chapter Notes. Thus, the classification has to be first determined in terms of the Headings of the schedule read with applicable section and chapter notes. Resort to the general rules other than Rule 1 can be only when the classification is not possible in terms of headings re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (53) E.L.T. 356 (Tribunal), it was observed that entry in old Excise Tariff was not to be interpreted with reference to the new Excise Tariff effective from 28-2-1986. In the present case, the entries in the old Tariff as well as in the new Tariff had been discussed above. It has also been observed that there was no material difference in the two entries and thus, the general observations with reference to the entry in the old Tariff could be taken note of in deciding the matter under the new Tariff. In the case of BPL Pharmaceuticals Pvt. Ltd. v. Collector of Central Excise, Baroda - 1994 (69) E.L.T. 798 (Tribunal), the matter related to the classification of the medicines. The Tribunal observed that the classification of the goods as indicated under old Tariff was not conclusive of the classification of goods under new Tariff. We find that the nature of the products has been clearly described and the case law referred to by the ld. Commissioner of Central Excise (Appeals) is relevant for determining the classification under the new Tariff. In the case of Commissioner of Central Excise, Trichy v. Neycer India Ltd. - 1999 (114) E.L.T. 373 (S.C.) = 1999 (35) RLT 660 (SC) the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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