TMI Blog1988 (2) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... s required for production of layer-built dry batteries. The film laminate is designed so as to permit maximum ionic migration between the depolarizer mix and zinc in the flat Electrolytic cells. 4. In Appeal No. 223 of 1983, we are concerned with a consignment of film laminate imported by the appellants at Madras Port. The Customs authorities assessed the goods to basic Customs duty (the duty leviable in terms of the First Schedule to the Customs Tariff Act, 1975) as a coated paper under Heading No. 48.01/21(1) and to additional duty of Customs under Item No. 17 of the Central Excise Tariff Schedule (CET, for short). After clearance of the goods on payment of duty so assessed, the appellants filed a claim for refund of Rs. 82,424.92 on the ground that the goods should have been classified as chemicals. A copy of the refund application has been filed by the appellants. It does not elaborate the grounds of claim. If there was any covering letter along with the claim, a copy of the same has not been filed. It is, therefore, not possible to ascertain from the claim itself whether the classification under the Customs Tariff Schedule alone was being disputed or also that under the CET ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chloride is used in the process of manufacture and this provides the necessary separator as well as the medium for the electro-chemical reaction between the cathode mix and zinc anode. The subject film laminate with carbon electrodes used in the construction of layer-built dry batteries is stated to provide a similar function. 6. At the commencement of the hearing itself, Shri Lakshmikumaran, Advocate, fairly stated that the issue regarding classification of the subject goods under the Customs Tariff Schedule had already been concluded against the appellants by this Tribunal in another appeal preferred by the same appellants. The decision is reported in Union Carbide India Ltd. v. Collector of Customs, Calcutta, 1983 E.L.T. 2443 (CEGAT). The arguments put forth by the appellants in support of the claim for classification as chemical under Heading No. 38.04/19(1) were the same as has been urged in the present matter before the lower authorities as well as in the Memo. of Appeal before us. Briefly stated, the grounds urged are that the film laminate does not have any function normally associated with paper. Its function is that of a chemical being used as part of dry battery. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions: 1) the judgment of the Karnataka High Court in Business Forms Ltd. v. Commissioner of Commercial Taxes, Karnataka, Bangalore (1985) 5 ECC 118 and 2) this Tribunal s decision in Sai Giridhara Supply Co. v. Collector of Central Excise, Bombay, 1987 (28) E.L.T. 438 (Tribunal). The case before the Karnataka High Court related to teleprinter rolls, adding machine rolls and computer output papers, etc. for the purpose of Entry 125 of the Second Schedule to the Karnataka Sales Tax Act. It is seen from the judgment that the Court itself noted that the classification of goods for the purpose of levy under the Central Excises and Salt Act furnishes no guidance for determining the rate of levy under the Sales Tax Act. In the case before the Tribunal the goods were carbon paper and carbonised adding machine rolls. In so far as carbon paper was concerned, the Tribunal relied on the judgment of a Single-Member Bench of the Karnataka High Court in Khoday Industries Ltd. v. Union of India, 1986 (23) E.L.T. 337 in which the Court had held that prior to the change of Tariff description of Item No. 17 by the Finance Act, 1982 (which had the effect inter alia of bringing carbon paper specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned. Looking to the description of Heading No. 38.01/19, we do not think that the subject goods can be classified thereunder since it covers chemical products and preparations of the chemical or allied industries not elsewhere specified or included and residual products of the chemical or allied industries, not elsewhere specified or included. No doubt, the chemicals which form the coating on the base paper may fall for classification as chemicals (not in Chapter 38 but in Chapter 28) but it is difficult to see how a film laminate consisting of base paper and chemical coating can be considered to be a chemical product or preparation or a residual product as defined in the Heading. We may also note that Rule 3(b) of the Rules for Interpretation of the Customs Tariff Schedule could be invoked only if sub-Rule (a) is not applicable. This sub-Rule, as already noted, provides that the most specific description shall be preferred to a heading providing a more general description. And, for coated or impregnated paper, Heading 48.01/21(1), being more specific, is to be preferred to the residual Heading 38.01/19(1). Hence we uphold the classification of the goods under Heading No. 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Udyog. The decision of the Tribunal was also the same as in the case of Yash Udyog. The discussions in both the cases were with reference to goods consisting of two or more layers of different materials being laminated together. Such is not the case in the present dispute. These decisions are, therefore, no help to the appellants. 8. In the circumstances, we are of the opinion that the goods were correctly classifiable, under Item 17(2) of the CET and liable to be charged to additional duty of Customs with reference to this heading. 9. Turning now to Appeal No. 30/83, the Assistant Collector by his order dated 28-9-1981 demanded from the appellants Rs. 1,95,003.96 on the basis that the goods were liable to be charged to additional duty of Customs under Item No. 15A(2) of the Central Excise Tariff Schedule. It is curious to note that the Assistant Collector had, in an earlier communication dated 12-9-1978 to the appellants, classified the goods for the purpose of levy of additional duty of Customs under Item No. 17(2) of the CET. In his Order-in-Appeal dated 2-4-1982, the Appellate Collector confirms the classification of the goods under Heading No. 48.01/21 of the Customs Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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