TMI Blog2010 (1) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... documents of title, etc., will be covered by Sub-heading 4901.90, CETA. Similarly, tickets, printed circulars, letters, forms etc. which are essentially printed matter requiring filling up of only minor details, would be covered by Sub-heading 4901.90.” But, at the same time it is pertinent to mention that at the material time when this circular was issued, the Chapter 49 was containing only one Chapter Heading that is 4901 and the Chapter 49 was not aligned with the HSN whereas, the present status is that the said Chapter 49 is totally aligned with HSN therefore, classifying the documents of title under CH No. 4901, in terms of the circular will not be justified. The appellant’s contention that their products fall under Chapter 49 is correct and liable to be up-held. Refund of duty - Held that:- The appellant has not produced any document or the record as evidence to show that which goods were cleared by them during the relevant period. They have also failed to submit any reasoning or any record or document that proves that the goods cleared during the relevant period did not attract Central Excise duty. In absence of any proper reason or evidence on record, the refund clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it; (ii) That the samples (numbered as 1 to 8) produced by the appellant were critically examined in light of CBEC Circular No. 11/91-CX.4 dated 15-10-1991 and the material printed by the party do not fall under purview of Chapter 49 as they had no fiduciary value in excess of intrinsic value and were not document of title, except only 1 sample (Sl. No. 1) out of 8 samples; (iii) That the appellant has not specifically given the detail of goods being manufactured by M/s. Tirupati Stationary Pvt. Ltd.; (iv) That the contention of Commissioner (Appeals) was not acceptable because while holding the items being manufactured by M/s. Tirupati Stationary Pvt. Ltd. as non dutiable by classifying the same under Chapter 49 the Commissioner (Appeals) has not given any justifiable reason for change in classification from 48 to 49 and also that the appellant are manufacturing the items like Computer Stationery with logo printed EZP and invoices, which fall under Chapter 48; (v) That the department has filed an appeal before the Hon ble CESTAT against the order passed by the Commissioner (Appeals) in the case of M/s. Tirupati Stationary Pvt. Ltd., therefore for this reason also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain is a Document of title, without which no person can prove his attendance; That the Learned Respondent has misdirected himself in law in as much as the product in question and more specifically the Sample No. 2, which is the Money Receipt/Carbon Leaflet issued on behalf of M/s. Sahara India Financial Corporation Ltd. and Sample No. 2 along with other sample from Serial No. 3 to 7 had fallen within the ambit of exclusion clause of Chapter 48 and particularly in Chapter Note 10 of Chapter 48, which reads as follows : - 10. Heading 4820 does not cover loose sheets or cards, cut to size, whether or not printed, embossed or perforated. That the Appellant crave leave and beg to elaborate the details of Chapter Heading :- CH. 4820 of CETA. 1985 4820 Register, account books, notes books, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, excise books, blotting-pads, binders (loss-leaf or other), folders, files covers, interleaved carbon sets and other articles of stationery, of paper or papers-board; albums for samples or for collection and book covers, of paper or paperboard C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas Chapter 48 is about paper and paper board, articles of paper pulp of paper or of paper board. No doubt both the Chapters refer to Articles of Paper but Chapter 48 is of General Nature, whereas Chapter 49 is specific about printed papers, including products of printing industry. This opinion find support from Chapter Note 4(c) of Chapter 49 which clarifies that the heading 4901 also covers note 4(c) printed part of paper book or booklets in the form of assembled or separate sheets or signatures constituting the whole or a part of complete work. Therefore there appears to be a clear demarcation in the intention of the Parliament in formulation of these two Chapters, namely, 48 and 49, where Chapter 49 encompasses product of printing industry, which produces its products by means of printing on paper, whereas Chapter 48 is about Paper and Paper Board, Articles of paper pulp of paper or of paper board. Hon ble Supreme Court in Moorco (India) Ltd. v. CCE, Madras, reported in 1994 (74) E.L.T. 5 (S.C.) has held that specific entry in tariff excludes residuary entry; That the Appellant say that in Central Excise classification Chapter heading and Chapter Note are preamble i.e. key t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscipline and causing contempt of court by observing in last page of order that the Learned Respondent holds that the order of Learned Commissioner (Appeals) Central Excise, Kanpur in the Case of M/s. Tirupati Stationers Pvt. Ltd., Unnao is not acceptable to the Respondent. The Appellants leave open the issue of contempt of court proceeding and rely upon decision of Hon ble Supreme Court in U.O.I v. Kamlakshi Finance Corporation Ltd. - 1991 (55) E.L.T. 433 (S.C.), wherein it has been held as follows :- the Order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction. The Apex Court has further held that, the principle of judicial discipline requires that the orders of the higher Appellate Authorities should be followed unreservedly by the subordinate Authorities. The mere fact that the Order of the Appellate Authority is not acceptable to the department is in itself is an objectionable phrase and even if the subject matter of an Appeal can furnish no ground for not following it unless its operation has been suspended by a competent court if this healthy rule is not followed, the result will only be undue harassment to the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions. None appeared on behalf of the department. 6. I have carefully gone through the facts of the case, the Order-in-Original, the grounds of appeal and the submissions made at the time of personal hearing and observe that the issue to be decided in the matter is as to whether the products being manufactured by the appellant and enclosed as sample No. 1 to 8 are liable to be classified under Chapter 48 or Chapter 49 and as to whether the appellant are eligible to refund of duty as sought by them on the ground of their goods being not liable to duty. Firstly, I take up the issue of classification. 7. I observe that the appellant has submitted the copies of the items being manufactured by them, as sample in original as well as scanned form, which they have claimed were also submitted before the adjudicating authority. On perusal of Order-in-Original, I notice that there is a mention of total eight samples admitted to have been submitted by the appellant although the description of individual samples are not available therein. Since, the adjudicating authority has acknowledged the eight samples, I agree with the submission of the appellant before me. I notice that the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his jurisdiction. The Apex Court has further held that, the principle of judicial discipline requires that the orders of the Higher Appellate Authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of Appellate Authority is not acceptable to the department is in itself is an objectionable phrase and even if the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by the competent court. If this healthy rule is not followed, the result will only be undue harassment to the assessee and chaos in administration of tax laws. It would be better for the lower authorities to exercise self control while recording such observations. 9. Now coming to the issue, I notice that the adjudicating authority while concluding the issue of classification of the samples in question, has not discussed the nature and use of the documents and has plainly observed that the material printed by the appellant do not fall under purview of Chapter 49. No discussion has been made as to how the said documents were not the document of title and as to how the fiduciary value was not in excess of intrinsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents are the documents of title in respect of which the appellant has come-up with various reasoning and the same are detailed in para 4 5. On going through the same, I have noticed that the appellant has emphasized that all the documents in question are document of title and are also having fiduciary value over the intrinsic value. The appellant has also pleaded that in terms of Chapter Note 10 of Chapter No. 48 the samples number at Sl. No. 2, 5 6 are printed leaflet in the form of money receipt, which cannot be considered as a book under Chapter 48, which as per legal glossary is defined as A collection of sheets of paper or other substance blank, written or printed, fastened together so as to form a material whole, especially that fastened together at the back and having a cover . The said money receipt give an entitlement to the holder of the receipt that his money has been deposited (in case of Cheques or draft after encashment) in the particular scheme/account head, where he is a participant cum depositor. The said Document of Title is also carved out in Chapter Note 4(c) of Chapter 49 having an overriding effect. For the sample mentioned at Sl. No. 3, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the documents in question are the document of title having fiduciary value over the intrinsic value , therefore, it is necessary to examine these terms I notice that the phrase document of title and the words like intrinsic value fiduciary value are not defined in the Central Excise Act or the Rules or allied rules made thereunder. Therefore, the best way is to consult the dictionaries. In commercial terms the meaning of phrase document of title is the commercial document (such as bill of sale, certificate of title, title deed) or shipping document (such as a bill of lading, dock receipt, warehouse receipt) that confers and/or proves ownership. Whereas, in simple terms (i.e. in layman s language), the phrase document of title means a document that confers a title and enables its holder (possessor) to receive, retain, sell, or otherwise dispose of the document and the goods or property listed therein. The term title means evidence of ownership, to confer, to bestow. Similarly, the term intrinsic value means the inherent, true, actual value not depending on accident, place, or persons, but the same every where. The term fiduciary value means the value of a do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y suitable for the products of the appellant. The adjudicating authority while deciding the issue has also not decided or suggested the classification with reasoning. 15. In the Tariff, under Chapter Head 4907, the description reads as unused Postage Stamps, Revenue or similar stamps of current or new issue in the country to which they are destined; Stamp-impressed paper; bank notes; cheque forms; Stock, Share or Bond certificates and similar documents of title . From the said description, it is not clear as to which documents are to be treated and classified as Document of Titles . Therefore, I have consulted the HSN and the explanatory notes mentioned therein. Under the above description in the HSN, it is written that the characteristic of the products of this heading is that on being issued (if necessary, after completion and validation) by the appropriate authority, they have a fiduciary value in excess of the intrinsic value . The Chapter Sub-Heading No. 49070010, 49070020 and 49070030 are product specific therefore, the products of the appellant can not be classified in any of the Chapter Sub-Headings. The CSH No. 49070090 however, is general heading, which in my opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligned with HSN therefore, classifying the documents of title under CH No. 4901, in terms of the circular will not be justified. In fact, as discussed above, the correct Chapter Heading for the goods in question is 4907 and Chapter Sub-Heading is 49070090. 18. After considering the findings of the adjudicating authority, the submissions of the appellants the relevant provisions in the HSN and the circular, I agree with the appellant s submissions. The para 3 and Para 4(i) of the circular as reproduced above, leave no ambiguity. Therefore, the appellant s contention that their products fall under Chapter 49 is correct and liable to be up-held. The Order-in-Original deserves modification upto the extent discussed hereinabove. 19. Coming to the issue of refund of duty already paid by the appellant, I observe that the adjudicating authority has denied the refund on the ground of unjust enrichment, as the appellant has worked under SRP system and had classified the goods under Chapter 48 by themselves and had paid duty thereon voluntarily, after availing input CENVAT credit. The duty paid by them has been recovered from the buyers. The adjudicating authority has also held that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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