TMI Blog2008 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... luminium Casseroles" manufactured by the appellant was mis-classified under Chapter Sub-heading 7615.10 up to 28-2-2005 and thereafter under CETH No. 7615 19 40 and cleared the same at Nil rate of duty under Notification No. 10/2003-C.E., dt. 1-3-2003. Since the appellants were manufacturing the excisable as well as exempted goods and they had availed CENVAT credit on common input, they paid amount equal to 8% up to August 2004 and 10% thereafter at the time of clearance as required under Rule 6(3)(b) of CENVAT Credit Rules. 2. Learned advocate Shri B.L. Narasimhan on behalf of the appellant submitted the following points in his detailed arguments. 2.1 Aluminium Casseroles manufactured by them cannot be considered as container but have to be considered as trays and therefore are classifiable as articles for table use. Learned advocate explained in detail the tariff description, HSN Explanatory note etc. up to 28-2-2005, the classification claimed for the product was under 7615.10. At that time, the tariff heading was as under: 76.15 Table, kitchen or other household articles and parts thereof, of aluminium; pot scourers and scouring or polishing pads, glov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covers aluminium cooking or heating apparatus similar to that described in the Explanatory Note to heading 74.18. 2.2 Further, the HSN Explanatory note with regard to the Chapter 73.23 which is applicable as per explanatory note was as under: 73.23 Table, kitchen or other household, articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel. 7323.10 Iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like Other: 7323.91 Of cast iron, not enamelled 7323.92 Of cast iron, enamelled 7323.93 Of stainless steel 7323.94 Of iron (other than cast iron or steel, enameled) 7323.95 Other He submits that in view of the HSN Explanatory note, which provides that the heading covers the same type of articles as are described in the HSN Explanatory note to Headings 73.23 and 73.24 and in view of the explanatory note given under Heading 73.23 which covers articles for table use such as trays, dishes, plates, spoons or vegetable dishes, items manufactured by the appellant are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court of South Africa. South African Supreme Court in their judgment, in Case No. 431/06 in the matter between Commissioner for South Africa Revenue Service v. The Baking Tin (PTY) Ltd. delivered on 14-9-2007 confirmed the view of the Revenue regarding classification and the intention of the importer regarding its end-use was held not to be a determining factor. The South African Supreme Court did not agree with the appellant's contention that the product similar to ones imported by the respondent in South Africa case, cannot be considered as container and he also drew our attention to the observations of the Hon'ble Supreme Court of South Africa in Para 14 which is reproduced below for ready reference. "14. The chapter notes set out above do not, as I have said, indicate that in order for the containers to fall under the heading they must be durable or of a permanent nature. And in any event the objective characteristics of the articles do not preclude re-use as a kitchen article. The heading, moreover, includes items such as pot scourers, scouring or polishing pads, and gloves. It is clear to me, therefore, that it was not intended to apply only to rigid articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner in Paras 5.4.4 to 5.4.6 reproduced below: "5.4.4 In the old Central Excise Tariff Item 27(f) the definition of containers was given as below: " Explanation I - "Container" means containers ordinarily intended for packing of goods for sale, including collapsible tubes, casks, drums, cans, boxes, gas cylinders and pressure containers whether in assembled or unassembled condition, and containers known commercially as flattened or folded containers. 5.4.5 Further the meaning of the word "container" has been elaborately explained in the judgment of Hon'ble Supreme Court in the case of G. Claridge Co. Ltd. v. Collr. of C.E. 1991 (52) E.L.T. 341 (S.C.) in the following words: "Container - One that contains; a receptable or flexible covering for shipment of goods." (Abstract from Webster's new Collegiate Dictionary, 1975) "Container - that in which goods are enclosed for transport." (Abstract from Chambers' 20th Centuary Dictionary) "Containers - Any receptable which holds, restrains or encloses any article or commodity or articles or commodities to be stored, or transported." (Abstract from Indian Standard - Glossary of Items: I.S. 4261-1967) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serole making press and aluminum foil is pushed into the die of press. Die punches the aluminum foil and then the foil gets converted into casserole form. 6. From the manufacturing process, itself, it can be made our clearly that what is manufactured is not a conventional casserole as a lay man understands the same. It is also not disputed that the product manufactured by the appellant with the lid is used in Railways, Air-crafts, etc. for providing packaged food. As pointed out by the learned advocate for the appellant, the opinion of Harmonized System Committee is clearly in their favour and the item description discussed above, clearly covers the items manufactured by the appellant. Since the tariff is aligned with HSN, it has to be accepted that the recommendations of Harmonised System Committee being of a great persuasive value and have to be considered for the purpose of determination of classification. The matter had gone before the Hon'ble Supreme Court of South Africa and the Hon'ble Supreme Court ruled in favour of the Revenue' and thereafter based on the submissions made by South African customs, Harmonized System Committee recommendations also fully support the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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