2002(05)LCX0015

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri S.S. Kang, Member (J) and V.K. Agrawal, Member (T)

COMMISSIONER OF CENTRAL EXCISE, JAIPUR-I

Versus

RAJASTHAN BREWERIES LTD.

Final Order No. 170/2002-B, dated 2-5-2002 in Appeal No. E/3389/2000-B

Cases Quoted

G. Claridge & Co. Ltd. v. Collector — 1991(02)LCX0055 Eq 1991 (052) ELT 0341 (S.C.) — Referred [Para 3]

Jain Packaging Pvt. Ltd. v. Collector — 1997(02)LCX0142 Eq 1997 (094) ELT 0225 (Tribunal) — Referred [Para 3]

Advocated By : Shri M.P. Singh, SDR, for the Appellant.

Shri M. Chandrashekharan, Advocate, for the Respondent.

[Order per : V.K. Agrawal, Member (T)]. - In this appeal, preferred by the Revenue, the issue involved is whether Aluminium cans lids, imported by M/s. Rajasthan Breweries Ltd., are to be classified under sub-heading 8309.90 of the first Schedule to the Customs Tariff Act as claimed by the Revenue or are classifiable under sub-heading of 7612.90 alongwith cans as confirmed by the Commissioner (Appeals), under the impugned Order.

2. Shri M.P. Singh, learned D.R., submitted that the respondents imported Aluminium Cans and Lids thereof and filed Bills of Entry for their clearances from the Warehouse classifying them under sub-heading 7612.90 of the Customs Tariff and sub-heading 7612.99 of the Schedule to the Central Excise Tariff Act; that the Assistant Commissioner confirmed the demand of additional duty classifying the lids under sub-heading 8309.90 of the Customs Tariff on the ground that Heading 83.09 provides most specific description and can & lid can not be imported in assembled condition; that, however, on appeal, Commissioner (Appeals) set aside the Adjudication Order holding that Rule 3(a) of the Interpretative Rules is not applicable as the same applies only with reference to Rule 2(b) which is not attracted in the matter; and that as per Rule 2(a) lids are classifiable alongwith cans under sub-heading 7612.90 of the Tariff. The learned D.R., further, submitted that the classification of lids is most appropriate under sub-heading 8309.90 as there is a specific entry “stoppers, caps and lids... of base metal”; that as per Rule 3(a) of the Interpretative Rules, a heading which provides most specific description shall be preferred to heading which provides a mere general description; that Explanatory Notes of H.S.N. below Heading 83.09 mentions specifically that “the Heading includes ... stoppers, caps and covers of the screw, clip lever, spring, etc., types as used for corking or capping beer bottles, mineral water bottles”. He also contended that a can without lid is a complete can classifiable under Heading 7310.21 of H.S.N. which reads as “Cans which are to be closed by soldering or crimping.”; that it is thus apparent that lids would be classifiable individually under sub-heading 8309.90 whether supplied separately or along with cans; that specific heading must prevail over the general one.

3. On the other hand Shri M. Chandrasekharan, learned Senior Advocate, submitted that the respondents had imported Aluminium cans and lids which are used in the brewery for filling beer; that as the lids are parts of the cans and do not have general use anywhere else, they have to be classified along with Aluminium Cans under sub-heading 7612.90 and not under 8309.90; that Heading 83.09 covers those products which have general usage and would not cover lids imported along with Aluminium Cans. He, further, submitted that Heading 76.12 applies to Casks, Drums, Cans, Boxes and similar containers”; that this means that Can has to be a container; that as held by the Supreme Court in the case of G. Claridge & Company Ltd. v. C.C.E., 1991(02)LCX0055 Eq 1991 (052) ELT 0341 (S.C.), the expression ‘container’ has to be construes to mean ‘packing containers’ which are analogous to boxes and cartons, that is, an enclosed receptacle; that accordingly Aluminium Can cannot be a container unless it is sealed; that Heading 76.12 contemplates a container which can hold something. He also relied upon the decision in Jain Packaging Pvt. Ltd. v. C.C.E., Bombay, 1997(02)LCX0142 Eq 1997 (094) ELT 0225 (T) wherein it was held that “The metal tops, metal bottoms and metal lids were manufactured specifically for the metal containers. They were not parts of general use......., As the metal tops, bottoms and lids were part of the metal containers; they have been correctly classified by the Revenue under Heading 8312.12.” The learned Senior Counsel also mentioned that there is no separate price for lids; that H.S.N. Explanatory Notes are to be applied only in case of doubt; that the decision of the Apex Court in Claridge’s case has to be applied. In reply the learned D.R. mentioned that when Cans are imported and no charge is made for lids separately, the Revenue can not charge separately for lid; that in commercial invoices raised by the supplier separate value for cans and lids had been mentioned ; that the issue involved in the present appeal is not whether cans without lid is a complete container or not; that use of can is also not material factor for classification of lid.

4. We have considered the submission of both the sides. The rival Headings read as under :

It is not in dispute that the respondents have imported Aluminium cans and lids thereof together. According to them they have imported Cans for filling up beer and sale. We find that “Aluminium cans” are specifically mentioned in Heading 76.12 and the fact that both cans and lids have been imported together goes to show that what has in fact been imported is nothing but cans for filling beer. The mere fact that lids were valued separately will not automatically mean that the Respondents have imported two separate goods - cans and lids. We find substance in the submissions of the learned Senior Counsel that they have imported only cans with lids and these have to be classified as Cans. The manner of showing value separately in the invoices can not be criterion for classifying the product under the Customs Tariff. If lids are imported individually, these can merit classification under Heading 83.09 which applies to lids. But that is not the case in the present matter. We, therefore, hold that in the circumstances of the present matter the cans with lids have been imported which merit classification under sub-heading 7612.90 of the Customs Tariff. Accordingly the appeal filed by Revenue is rejected.

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Equivalent 2003 (151) ELT 302 (Tri. - Del.)

Equivalent 2002 (051) RLT 1027