TMI Blog1983 (12) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... r Tariff Item 17(2) and should pay duty at the appropriate rate. He also ordered the recovery of Central Excise duty at appropriate rates on the quantities of plastic coated paper removed by the assessees for the period 74-76 till date under provisions of Rule 10 read with Rule 173-J of the Central Excise Rules. When the matter was heard on 6-9-1983 the Counsel for the Department, Mr. A.K. Jain said that the product undervent no kind of printing with colour. There was merely a coating with a PVC sheet rolled on to the paper even though the PVC sheet was coloured. Printing in colour involves the use of ink to impart to the paper a colour whether by printing or by means of rollers or by a spray or by any other method. The paper itself must partake of the colour. It is only then the exemption for paper, to which printing with colour has been done, would be earned under Notification No. 68/76. 2. The Counsel for M/s. Entremonde Polyecoaters, Mr. J.M. Patel, Advocate began by saying that the show cause notice dated 23rd Jan., 1979 issued by the Govt. of India was unsatisfactory for many reasons - one being that it does not say why the Central Govt. was of the view that coating by PV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Department said that M/s. Entremonde Polyecoaters had accepted the Order-in-Appeal passed by the Appellate Collector. It, therefore, cannot now complain against the Show-Cause Notice. The Order-in-Appeal holds that the product is a paper and, therefore, being a paper it must be assessed in accordance with that item and with any exemptions to which it may be entitled. The Tariff Item had two sub-items (1) and (2). The goods were assessable under sub-item (1) whereas the exemption was for goods falling under sub-item (2). 6. M/s. Entremonde Polyecoaters Pvt. Ltd. at one time had attempted to have the goods assessed under Item 15A, but this does not appear to have found favour with the Appellate Collector who held that the product was definitely known as paper in the market and corresponds more to the definition of `paper rather than the definition of articles of plastics. 7. We will first deal with Mr. Patel s arguments that the paper already having paid duty as paper cannot be charged to duty first as paper. For this he quoted the order of the Tribunal 1983 E.L.T. 1123. However, there is a difference between that case and this. In that case the paper on which processin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the product by M/s. Entremonde Polyecoaters is not entitled to the benefit it received at the hands of the Appellate Collector. 10. One of the arguments presented on behalf of M/s. Entremonde Polyecoaters Pvt. Ltd. is that this Tribunal has decided in the case of Golden Paper Udyog Pvt. Ltd., Faridabad v. Collector of Central Excise, Delhi (Order No. 109/83-C, dated 25th May, 1983) that duty-paid kraft paper which is bituminised, cannot be assessed to duty again under Item 17(2) after the process of bituminisation because such process does not amount to manufacture. Here also the paper used by M/s. Entremonde Polyecoaters is duty-paid paper. Therefore they cannot be made to pay the duty again. The decision of the Tribunal in the Golden Paper Udyog is one in which the duty-paid kraft paper after processing and bituminisation remains described by the same sub-item 17(2). Since that duty has been paid, it would not be correct to demand duty again on the same article. The paper manufactured by Entremonde has been held to be dutiable under 17(2) but the base paper from which the product was made was, as recorded by the Assistant Collector in his Order-in-Original, a printing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Respondent. 15. Certain material facts require to be set forth below - (a) The relevant period was, as mentioned by the Assistant Collector for the first time in his adjudication order dated 13-4-1977 (it was not mentioned in the undated show-cause notice received by the Appellant on or about 12-2-1977) from 17-4-1976 to 13-4-1977 - the date of the order in original itself. (b) Two classification lists dated 9-4-1976 and 17-10-1976 respectively were filed by the Respondent. They were both approved - the first on 17-4-1976 and the second on 1-11-1976. (c) In the aforesaid approved classification lists, the goods, in question, were shown to fall within Item 17(2) of the 1st Schedule and the benefit of Notification No. 46/73, dated 1-3-1973 as amended by Notification No. 68/76, dated 16-3-1976 was claimed and allowed. (d) It is to be noted that the approval was not provisional in any manner whatsoever. (e) Nevertheless, in February, 1977, a notice was issued to the Respondent :- (i) alleging, inter alia, that the goods in question were ineligible for the exemption in Notification No. 68/76, dated 16-3-1976 for the reason that the plastic laminated paper, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself came to an entirely contrary conclusion in another case on identical issues four days after he pronounced his order in the instant case. That was the case of M/s. Shri Vindhya Paper Mills Ltd. heard by him a few days after the hearing in this case. This was one of the reasons that may well have prompted a review under Section 36(2) of the Act (as it read then). (j) Be that as it may, it is in consequence of the issue of the notice for review that the Respondent came up before the Government, answered the show-cause notice, and made his submissions as well, in a personal hearing, on or about 28-2-1981. No order was pronounced. The case was transferred, however, to the Tribunal on its constitution. 16. One of the issues that were agitated right through and even before us was the question of competence and jurisdiction of the Assistant Collector to review an order of classification - his own or that of his predecessors. [Grounds 1 and 2 in the Memorandum of Appeal before the Appellate Collector and para (1) of the reply dated 14-3-1977 to the show-cause notice]. This issue was not dealt within the order proposed to be made by my learned Brothers, and has occasioned this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee accordingly (sub-rule 5); (d) once, therefore, after such enquiry as he may deem fit, the classification list is approved, it may be altered for three specified reasons only. The third of such reasons - relevant in the facts of this case - is where there is a change in the rate of duty or by reason of amendment to the 1st Schedule, a change in the item number itself; (e) a change in the rate of duty, as is well understood, is statutory. It is not, by any means, a change in the rate of duty that could be effected by the proper officer on his own. Much less can it comprehend a reclassification. Rate of duty is not synonymous with classification or reclassification. Classification determines the rate of duty but every change in the rate of duty does not necessarily involve reclassification. If it were reclassification and consequent change in the rate of duty that was meant, there was no reason why it should not be adverted to specifically. Similarly, a change in the item in the First Schedule is statutory; (f) any other reason in sub-rule (5) has reference only to the reasons set forth in sub-rule (4). It cannot be reasons other than those already enumerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential demand for payment of differential duty; (i) in J.K. Synthetics v. Union of India (1981 ECR 333), the assessee applied for rectification of previous assessments and grant of consequential refund. The case for such rectification in completed assessments was ultimately allowed in Revision proceedings before the Government of India. Nevertheless, the entire amount claimed was not refunded on the basis of trade notices and circulars issued. Further the assessee was told that duty would be continued to be collected on a basis other than that approved finally in the Revision proceedings. In a Writ Petition for enforcing a refund of the amounts collected in excess earlier and for directions for assessment on an appropriate basis, it was held that, notwithstanding the axiomatic rule that the principles of Res-judicata and estoppel are inapplicable to tax cases, a decision in assessment is not to be departed from capriciously. There should be fresh facts, or change in the law or a failure to notice material facts or considerations to warrant any departure from the decision of the Central Government in Revision. It would be observed that the decision is not one in relation to compe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
