TMI Blog2005 (9) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... Heading 39.20. This conduct has to be deprecated in no uncertain terms. In any case, this Judgment is only rendered on 7th July, 2005. Mr. Swami states that the Department is filing an Appeal against this Judgment. It must be mentioned that the Department was represented before the Tribunal. The Department has again been negligent in not pointing out to the Tribunal that in the Appellants' own case and for this very period, it has already been held by the Tribunal that the product is classifiable under Tariff Heading 39.20. Appeal dismissed. - 5242 of 2000 - - - Dated:- 26-9-2005 - S.N. Variava and Tarun Chatterjee, JJ. [Judgment per : S.N. Variava, J.]. - This Appeal is against the Judgment dated 11th July, 2000 passed by the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be dismissed. 3. However, as the matter has been argued in great detail and as we find that subsequent to the impugned Judgment the Tribunal has adopted an erroneous view, we deem it expedient to also deal with merits and clarify the position. 4. The concerned Tariff Entries read as follows : "76.07 Aluminium foil (whether or not printed or backed with paper, paperboard, plastics or similar backing materials) of a thickness (excluding any backing) not exceeding 0.2 mm. 76.12 Aluminium casks, drums, cans, boxes and similar containers (including rigid or collapsible tubular containers), for any material (other than compressed or liquefied gas), of a capacity not exceeding 300L, whether or not lined or heat- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heading 76.07 will not apply to products which assume the character of articles or products of other headings. In this case, since plastic predominates the product assumes the character of plastic and for this reason it could not be classified under Chapter 76. HSN Explanatory Notes to Chapter 39 also clarify that products consisting of plastic remain covered by Chapter 39 even though they are separated by a layer of another material such as foil, paper etc. provided they retain the essential characteristics of articles of plastic. The test reports show that the concerned products retain the characteristics of plastic. Therefore on merits also we find that the view taken by the lower authorities is the correct view. 5. It was however subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in not citing the impugned Judgment, which decided the law correctly, at the time India Foils Ltd.'s case was being decided by the Tribunal. Had it been cited it would have been a binding precedent. The Department's negligence is further brought out by the fact that the Judgment in India Foils Ltd.'s case was not carried in Appeal before this Court. However, merely because the Judgment in India Foils Ltd.'s case is not carried in Appeal would not be a ground for setting aside the impugned Judgment, though it may have been a ground for not interfering with a Judgment which had followed India Foils Ltd.'s case. 8. We find on a reading of India Foils Ltd.'s case that it is based upon decisions of the Tribunal in the cases of Hindustan Pack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed upon an Order dated 7th July, 2005 passed in the Appellants' case, wherein it has been held by the Tribunal that the Appellants' product is classifiable under Tariff Heading 76.07 and not 39.20. This Order is based on R.T. Packaging Ltd.'s case. We find that the Appellants have been dis-honest inasmuch as they did not point out to the Tribunal that in their own case, and for the same period, it has already been held by the Tribunal that the product is classifiable under Tariff Heading 39.20. Instead of pointing out this, they rely upon R.T. Packaging Ltd.'s case. This conduct has to be deprecated in no uncertain terms. In any case, this Judgment is only rendered on 7th July, 2005. Mr. Swami states that the Department is filing an App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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