TMI Blog2023 (10) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... arking and other indications on the laminated paper cleared by the appellant it is quite evident that the product is cleared for wrapping of the photocopying paper. From perusal of entry at heading 48114900 (reproduced earlier in the quote from impugned order) it is observed that the said entry is preceded by a single dash entry Gummed or adhesive paper and paper board and a double dash entry self adhesive . All the gummed and adhesive paper and paper board, which are not of self adhesive nature will get classified under this heading. For getting classified under this heading the basic character which needs to be established is that the paper is Gummed or Adhesive paper. It is found that the product in dispute is neither gummed or adhesive paper and hence the classification under this heading gets ruled out. There are no merits in the said observation as the he has failed to notice that the preceding three dash entry do not specify any such condition and preceding single dash entry is other thus the requirement of cut to shape and size as stated in 4823, would be applicable to the goods classifiable in all the headings prior to 4823.90 and not to the entries falling unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006-07, 2007-08 2008-09 which was furnished by the appellant 1 on 3.11.2009. Revenue was of the view that appellant 1 had wrong claimed the benefit under Notification No 49/2003-CE and 50/2003-CE, as the heading 4811 under which the appellant 1 had classified their product laminated paper, was specified in the negative list, and the benefit of said exemption was not available to the appellant. Benefit under Notification No 8/2003-CE was also not available to the appellant 1 as the aggregate value of clearance of excisable goods during the Financial Year 2008-09 was more than Rs 4 Crore. 2.5 Officers visited the factory premises of appellant for further investigations and recording the statements of the concerned persons. Appellant 1 deposited an amount of Rs 20,00,000/- under protest. 2.6 A show cause notice dated 11.06.2010 was issued to the appellant 1 asking them to show cause as to why: (i) The duty of Rs 30,78,288/- should not be demanded and recovered from them under Section 11A of the Central Excise Act, 1944. (ii) The amount of Rs 20 lacs deposited by them may not be appropriated against the duty liability as mentioned in forgoing paras. (iii) The inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in negative list of items specified under these exemption notification. Admittedly appellant had claimed the classification under the said heading earlier, but it is settled position in law that they cannot be estopped from changing the classification. Reliance is placed on the following decisions: Dunlop India Ltd 1983 (13) ELT 1566 (SC) Elson Machines Pvt Ltd. [1988 (38) ELT 571 (SC)] The laminated paper manufactured by them is packing/ wrapping of photocopy paper and hence will be correctly classifiable under heading 4823. Reliance is placed on the following decisions: Kumudam Publications (P) Ltd. [1997 (96) ELT 226 (SC)] Surya Packaging [2004 (170) ELT 409 (T-Mum)] Shree Arun Packaging Corporation [1997 (94) ELT 195 (T) Punjab Laminates Pvt Ltd [2002 (147) ELT 1196 (T)] Meghdoot Laminart Pvt Ltd [1990 (49) ELT 75 (T)] Circular No 42/90 dated 23.10.1990 clarified that Printed Wrappers used for wrapping goods wil be classified under heading 4823. Heading 4823 is not in negative list of Notification No 50/2003-CE hence benefit of this notification will be admissible. Extended period is not invokable in view of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally applied for, we do not attach any significance to this aspect of the matter pointed out by counsel. The question is of general importance and must be decided on its merits. In case of Elson Machines Pvt Ltd, Hon ble Supreme Court observed as follows : 8. The next submission on behalf of the appellant is that the Classification Lists had been approved earlier and the Excise authority was estopped from taking a different view. Plainly there can be no estoppel against the law. The claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected. 4.4 On the issue of the classification of the impugned goods Commissioner (Appeal) has in the impugned order observed as follows: It is seen that the appellant have classified the product Laminated Wrapper under chapter sub heading 48114900 and on confirmation of the same by the department, they themselves contested that the product Laminated Wrapper is classifiable under chapter sub heading no. 48239013 and not under chapter subheading 48114900. They raised this issue for the first time before the adjudicating authority while contesting the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of goods 4823 OTHER PAPER, PAPERBOARD, CELLULOSE WADDING AND WEBS OF CELLULOSE FIBERS, CUT TO SIZE OR SHAPE; OTHER ARTICLES OF PAPERPULP, PAPER, PAPERBOARD, CELLULOSE WADDING OR WEBS OF CELLULOSE FIBERS 482390 -other ---Braille paper, cellulose in sole board or sheet; packing and wrapping paper; paper for cigarette filter tips; paper cone for loud speaker; patterns made of papers for leather footwear, leather garments and goods; patterns made of paper for articles of apparel and clothing accessories, products consisting of sheets of paper or paperboard, impregnated, coated or covered with plastics (including thermoset resins or mixtures thereof or chemical formulations, contain-ing melamine phenol or urea formaldehyde with or without curing agents or catalysts), compressed together in one or more operations; decorative laminates : 48239013 ----packing wrapping paper On careful reading of the descriptions of goods mentioned u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned, it is accepted by the appellant also that sub heading 48114900 is included at Sl No 19 in the negative list of annexure-I of the said notification and hence the exemption was not admissible on the product laminated wrapper paper to the appellant. 4.5 We also find that the original authority has rejected the contention of the appellant by stating as follows: I observe that as the classification of a product manufactured and cleared very earlier cannot be changed now in absence of the product of that time and classification as mentioned in returns are the actual classification of the products cleared by the party hence the Circulars cited by the noticee has no relevance at this juncture. 4.6 The observations made by the original authority and Commissioner (Appeal) which run contrary to the observations of the Hon ble Supreme Court referred earlier by us can be nothing but in the ignorance of the law laid down by the Hon ble Apex Court. 4.7 In case of Indian Tools Manufacturers [1994 (74) ELT (SC)] Hon ble Supreme Court observed as follows: 12. On behalf of the appellants, it has been contended that to decide this controversy, regard must be had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That being so it will be have to be as per the test laid down by the Hon ble Supreme Court in above decisions the classification needs to be determined by treating the paper cleared as wrapping paper only. Sample of the product in dispute is reproduced below : 4.9 Board Circular 42/90 dated 23.10.1990 reads as follows : 3. The matter has been discussed in the East-Zone-Tariff-cum-General Conference held at Shillong on 25th and 26th April, 1990. The Conference took the view that printed wrappers cut to size or shape, basically for wrapping products, can not be considered as products of printing industry. The view that printed wrappers in addition to providing protection to the wrapped article also provide identity, sales appeal, advertisement and information so that printing becomes essential and thus goods merit classification under Chapter 49 was not accepted by the Conference. The Conference also felt that printed wrappers, even after being cut to size remain paper and do not become products. Therefore, it recommended classification of such printed wrappers under sub-heading 4823.19 of Central Excise Tariff Act, 1985. On the issue of its being treated as converted pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement of cut to shape and size as stated in 4823, would be applicable to the goods classifiable in all the headings prior to 4823.90 and not to the entries falling under this heading and subheading in this category. 4.12 W also find that the entry 48239013 is specifically made by expansion of the entries 482390 to eight digit and specifically covers the printing and wrapping paper. We do not find any merits in the order classifying the wrapping paper manufactured and cleared by the appellant in any other entry, as that is contrary to the principles laid down under General Rules of interpretation of Tariff stating as follows: 6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative Section and Chapter Notes also apply, unless the context otherwise requires. Further General Explanatory Notes, Note 1 reads as follows: 1. Where in column (2) of this Schedule, the description of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
