2002(09)LCX0065

IN THE CEGAT, SOUTH ZONAL BENCH, BANGALORE

S/Shri G.A. Brahma Deva, Member (J) and S.S. Sekhon, Member (T)

PEE BEE PACKAGING INDUSTRIES

Versus

COMMR. OF C. EX., HYDERABAD

Final Order Nos. 1250-1251/2002, dated 27-9-2002 in Appeal Nos. E/2534-35/98

Cases Quoted

Collector v. ITC Ltd. — Order Nos. 253-256/95-C — Referred............................................. [Para 2]

Collector v. Vijay Flexible Containers Pvt. Ltd. — 1998(03)LCX0122 Eq 1998 (100) ELT 0158 (Tribunal-LB) — Referred ............... [Paras 5(b), 5(d)]

ITC Ltd. v. Collector — Referred.................................................................................... [Paras 2, 5(b)]

VST Industries Ltd. v. Commissioner — Referred ....................................................... [Paras 2, 5(b)]

Advocated By :   None, for the Appellant.

Smt. Radha Arun, SDR, for the Respondent.

[Order per : S.S. Sekhon, Member (T)]. - When the matter was called none appeared on behalf of the appellants. However there was a request from the party to decide the matter on merits.

2. The appellants, M/s. Pee Bee Packaging Industries Ltd., are manufacturers of printed and un-printed cartons, shells and slides made of paper and paperboard falling under Chapter 48. The shell and slide are component parts of a cigarette packet which is complete only when the slide is inserted into the outer shell. They manufacture these items on job work basis for M/s. VST Industries, Hyderabad. In January, 1996 the appellants filed a fresh declaration changing the classification from 4819.12 to 4823.90 which has been accepted in view of CEGAT’s judgment in the cases of M/s. ITC Ltd. v. CCE, Madras and M/s. VST Industries Ltd. v. CCE., Madras and CCE, Patna v. M/s. ITC Ltd., vide Order Nos. 253 to 256/95C, dt. 31-8-95.

3. In the year 1996-97 Budget, the duty on goods falling under Chapter S.H. 4819.12 was reduced from 20% to 10% Adv., retaining the rate of duty on the items falling under sub-heading No 4823.90. They filed a revised declaration under Rule 173B changing the classification from 4823.90 to 4819.19 in view of Tariff structure being changed, and also that the Department took the stand that shells are properly classifiable under Tariff Heading No. 4819 since the Department’s appeal against the Tribunal’s decision was pending in the Supreme Court. The Asstt. Commissioner has not accepted the change in classification and demanded differential duty of Rs. 3,15,109/- for the period from 30-7-96 to 30-11-96 confirming the classification under sub-heading 4823.90.

4. In appeal the Commissioner (Appeals) uphold the order of the Asstt. Commissioner on the finding :-

“5. I find that the issue of classification of shells and slides of paper and paperboard has already been settled by the Hon’ble CEGAT, New Delhi in their Final Orders No. 253 to 256/95-C, dated 31-8-95 wherein the same have been classified under Chapter sub-heading No. 4823.90. After going through the tariff description in Chapter Heading No. 48.19 for 1995-96 and 1996-97, it is observed that although there is a light rearrangement in the wordings of Chapter Heading 48.19 during 1996-97 as compared to 1995-96 yet these changes are not material or structural as to warrant change of classification of the impugned goods from 4823.90 to 4819.19. The overall position for all practical purposes remains unaltered. Moreover, the description of the Tariff Heading Nos. 4823.90 remains the same both for 1995-96 and 1996-97 and therefore the classification of the impugned goods under 4823.90 seems to be correct and Assistant Commissioner’s order in this regard is justified and sustainable. The Tribunal’s decision in the case of M/s. Shree Arun Packaging Corporation v. CCE, 1996 (88) E.L.T. 417 cited by the appellants in their favour is not relevant and appropriate when more specific case concerning the classification of shells and slides has already been decided by CEGAT vide Order Nos. 253 to 256/95-C, dt. 31-8-95 referred to above. In my view, this will hold good in the changed circumstances also. Moreover, this decision of the Tribunal will prevail over the decision of the CEGAT in the case of M/s. Shree Arun Packaging Corporation which does not specifically deal with the issue of classification of the impugned goods.”

Hence this appeal.

5. We have heard both sides and considered the matter and find : -

(a)        Tariff Heading 4819 of Central Excise Tariff Act, 1985 during the year 1995-96 and after amendment reads as follows :-

Note :        The portions which are additions, before and after amendment are underlined.

and find there was no corresponding change in Heading 48.23 and the Sub-Headings thereunder.

(b) The Larger Bench of the Tribunal in the case of Collector of Central Excise, Bombay v. Vijay Flexible Containers Pvt. Ltd. reported in 1998(03)LCX0122 Eq 1998 (100) ELT 0158 (Tribunal) has held by majority decision that Outer shells, Sleeves and hinged lid blanks are only a piece of printed paperboard and not a receptacle and that goods were not classifiable under erstwhile Tariff Item 17(4) or 17(3). The erstwhile Tariff Item 17(4) covered articles of paper pulp and paper board, specified as -

   “Boxes, cartons, bags and other packing containers (including flattened or folded boxes and flattened or folded cartons), whether or not printed and whether in assembled or unassembled condition.”

Being bound of this decision of Larger Bench of the Tribunal, as regards the entities under classification not to be Boxes, Containers, etc. covered by 17(4) of erstwhile Tariff. We cannot find any reason to include these entities under other packing containers (including flattened or folded boxes and flattened or folded cartons) under sub-heading 48.19 as being submitted before us by the appellants, since they have not been considered as flattened containers or folded cartons, etc. by the Larger Bench, When there is no change in the entity, they have already been considered as other articles of paper pulp and paperboard; they would, therefore, be fall under Heading 4823.90 as held by the Lower Authorities, where the Tribunal has classified by them earlier vide its series of Orders in the case of ITC Ltd. v. CCE, Madras and VST Industries Ltd. v. CCE, Madras (supra).

(c) Since there is no change in the Heading 4823.90, the plea being made before us that re-classification under Heading 4823.90 as called by the context of Tariff Act amendment 1996-97 is therefore not upheld. There is no cause to change the classification.

(d) We also find on reading Rules of Classification Tariff Heading 4819.19, they not cover the subject goods. It is not understood how when the flattened or folded cartons and boxes are not covered by the decision of the Larger Bench of the Tribunal in Vijay Flexible Containers Pvt. Ltd., they are covered by the same wordings to be classified under Heading 4819.90 due to the Tariff amendment to the Heading 4819 by the Budget Proposals of 1996-97.

(e) We would find classification under Heading 4823.90 to be more appropriate by applying the rules of classification on the basis of letter and spirit of the Budget Proposals. We do not find, there is any reason to change of classification from under Heading 4823.90, merely because of the Department appeal against the Tribunal’s decision on classification under Heading 4823.90 is pending before the Supreme Court as no order of the Apex Court has been shown to us by both sides.

6. In view of our findings we find no merits in the appeal. In the result the appeal is dismissed.

Equivalent 2003 (151) ELT 595 (Tri. - Bang.)