1996(09)LCX0080

IN THE CEGAT, COURT NO. III, NEW DELHI

S/Shri G.R. Sharma, Member (T) and A.C.C. Unni, Member (J)

SHREE ARUN PACKAGING CORPORATION

Versus

COLLECTOR OF C. E., BOMBAY-I

Final Order No. 581/96-C with Misc. Order No. 128/96-C, dated 12-9-1996 in Appeal No. E/4521/89-C

Advocated By : Shri Gopal Prasad, Advocate, for the Appellant.

Shri J.M. Sharma, JDR, for the Respondent.

[Order per : G.R. Sharma, Member (T)]. - By the captioned appeal, the appellants have assailed the order of Collector, Central Excise (Appeals). The Collector (Appeals) had held :

“3. I have carefully gone through the appeal petition and the impugned order appealed against. The product ‘Printed Wrappers’ is used for packing of goods although on it may be printed names, trade marks, directions for use and other information above the products. These are merely incidental to the primary use. It therefore, cannot be classified under Chapter 49 as the products of printing industry. As regards appellants contention about S.H. 4818.19, it is observed that Heading 4818.19 covers cartons, boxes, containers and cases excluded from sub-headings 4818.12 and 4818.13. Printer wrappers do not fall under categories of cartons, boxes, containers, therefore, can not merit classification under 4818.19. Thus these are to be classified under residuary sub-heading 4818.90 only.

In view of the above discussion, I reject the appeal."

2. The facts of the case, in brief, are that the appellants filed Classification lists and described the goods as under :

The Department alleged that these materials were not classifiable under sub-heading claimed by them and were classifiable under sub-heading 4818.90 and printed covers were classifiable under 4818.19. During the course of personal hearing before the Asstt. Collector, the appellants contended that these articles being not labels or wall paper, they are rightly classifiable as ‘other products of printing industry’ under sub-heading No. 4901.90. About printed wrappers, the appellants submitted that in case they are not classifiable under Chapter 49, they should be classifiable under Chapter sub-heading 4818.19. About buntings, the appellants contended that they were covered by sub-heading 4901.90. The Asstt. Collector after considering the various submissions held that printed covers are containers and classifiable under sub-heading 4818.19. He also held that printed display hanging cards, printed top cards, buntings, printed danglers are classifiable under sub-heading No. 4901.90; that printed folders manufactured by the appellants are classifiable under sub-heading No. 4818.90. When the appellants were not satisfied by this decision of the Asstt. Collector, they filed an appeal before the Collector (Appeals) who held that the product printed wrapper is used for packing of goods although it may be printed, therefore, they are to be classified under sub-heading 4818.90. For other items, the ld. Collector (Appeals) upheld the order of the Asstt. Collector.

3. Shri Gopal Prasad, the learned Advocate appearing for the appellants submitted that a show cause notice was issued to them asking them as to why all the products classified by them under sub-heading No. 4901.90 should not be classified under sub-heading No. 4818.90 and that why printed covers should not be classified under sub-heading No. 4818.19. The ld. Counsel submitted that the only dispute that remained after the decision of the Asstt. Collector pertained to classification of wrapper; that the ld. Counsel held that wrappers were classifiable under sub-heading No. 4818.90. The ld. Counsel submitted that Chapter Note 8 of Chapter 48 provided that paper and paper board, cellulose, wadding and articles thereof, printed with motifs, characters or pictorial representations which are not merely incidental to the primary use of the articles, fall in Chapter No. 49; that on perusal of the Heading No. 48.18, it will be seen that sub-heading No. 4818.90 includes other articles of paper other than articles meant for packing. Even assuming that wrapper is a type of container, it should be classifiable under sub-heading No. 4818.19.

4. The ld. Counsel also prays for raising additional grounds saying that wrappers were correctly classifiable under sub-heading 4818.90 as paper cut to size; that wrappers are nothing but paper cut to size and its classification as other articles of paper and paper board will not be correct in law; that the Govt. of India in their Circular No. F. No. 61/12/90-CX. 4, dated 23-10-1990 clarified that such printed wrappers are classifiable under sub-heading No. 4823.19. The ld. Counsel submitted that this entry corresponds to sub-heading No. 4823.17 during the year 1986-87. It was argued by the ld. Counsel that though the Circular was issued by the Government of India later, it has retrospective application. The ld. Counsel submitted that the classification of wrapper under sub-heading No. 4817 was not agitated before the lower authorities and may be permitted by the Tribunal as an additional ground. The ld. Counsel also cited the case of Jute Corpn. of India Ltd. reported in 1990(09)LCX0030 Eq 1991 (051) ELT 0176 (SC) and the judgment of the Tribunal in the case of C.C.E. v. Andaman Timber Industries Ltd. reported in 1992 (060) ELT 635 on the issue of additional grounds. Summing up his arguments, the ld. Counsel submitted that wrappers may be classified under sub-heading 4817.90.

5. Shri J.M. Sharma, the learned DR reiterated the findings of the lower authorities.

6. Heard the submissions of both sides. The first issue agitated before us was Misc. Application No. E/72/96-C. We find that the appellants had not raised the issue of classification of wrapper under sub-heading 4817.90 before the lower authorities. Thus claiming classification under different headings which was not claimed before, amounts to making out entirely a new case and a new case cannot be made out before the second appellate authority, therefore, the additional grounds are inadmissible and the Miscellaneous Application is rejected.

7. The limited issue that remains for determination is whether wrappers are classifiable under sub-heading 4818.19 as held by the ld. Collector (Appeals) or 4818.90 as claimed by the appellants. For the sake of convenience, sub-headings 4818.19 and 4818.90 are reproduced below :

 8. 48.18 is a general heading. 4818.11 covers products intended for packing of match sticks. 4818.12 covers printed cartons, boxes, containers and cases, made wholly out of paper or paper board etc. 4818.13 covers other printed cartons, boxes and cases. 4818.19 covers others. 4818.20 covers toilet tissues, handkerchiefs and cleansing tissues of paper 4818.90 covers others. A perusal of the above entries shows that both tariff sub-headings 4818.19 and 4818.90 cover goods as ‘others’. 4818.12 covers printed cartons, boxes, containers and cases. Out of these 4 items, printed cartons, boxes and cases are covered by sub-heading 4818.13. The only item that can be classified under 4818.19, therefore, remains to be printed containers. The fact remains that the product is printed and for printed items, there are three entries. Entry 4818.12 covers printed cartons, boxes and cases. Out of these 4, printed cartons and boxes are covered by sub-heading 4818.13 and, therefore, the printed items in the form of containers shall be covered by sub-heading 4818.19. The only issue now remains is whether wrappers can be said to be containers and the use of the product furnished by the appellants as recorded in the order of the Asstt. Collector, it has been stated : “They have stated that these are meant for wrapping or packing some material or articles. They are, therefore, containers in unassembled condition”. Looking to the use of the product coupled with that they are printed, we find that the only Heading under which they can be classified is sub-heading 4818.19. We, therefore, hold that wrappers are classifiable under sub-heading No. 4818.19.

9.In the above view of the matter, the impugned order is set aside and the appeal is allowed.

Equivalent 1996 (88) ELT 417 (Tribunal)