1991(12)LCX0042
BEFORE THE CEGAT, SPECIAL BENCH ‘C’, NEW DELHI
Shri S.K. Bhatnagar, Vice President and Ms. Jyoti Balasundaram, Member (J)
COSMOS ENTERPRISES
Versus
COLLECTOR OF CUSTOMS
Order No. 3/92-C, dated 23-12-1991 in Appeal No. C/3390/90-C
Cases Quoted
PUDUMJEE PULP AND PAPER MILLS LTD. v. U.O.I. -1990(09)LCX0060 Eq 1991 (051) ELT 0273 (BOM.) [PARA 6]
COLLECTOR v. NEW INDIA INDUSTRIES LTD. - 1989(10)LCX0019 Eq 1990 (047) ELT 0083 (TRIBUNAL) [PARA 6]
Advocated By: Shri A.K. Patnaik, Consultant, for the Appellants.
Shri L.N. Murthy, JDR, for the Respondent.
[Order per : Jyoti Balasundaram, Member (J)]. - The issue for consideration in this appeal is whether “thermal printing paper” imported by the appellants is to be classified under Heading 4823.90 of the Customs Tariff as claimed by them or under Heading 4811.90 as ordered by the Departmental authorities.
2. The appellants had imported a consignment of thermal printing paper in September 1988 and had claimed its clearance as “printing and writing paper” with benefit of Notification 55/86-Cus., dated 17-2-1986. The goods were examined and the test report stated that “the sample is a cut piece of one sheet of paper composed of chemical pulp. It is coated on one side with a heat sensitive preparation containing organic chemicals - GSM - 61.4". After issue of show cause notice and adjudication the adjudicating authority classified the goods under Heading 4811.90 of the Customs Tariff and the Central Excise Tariff, on the basis of the width of the imported paper. Classification under Heading 4823.90 was ruled out for the reason that that Heading included ”paper and paper board..... in strips or rolls of a width not exceeding 15 cms." The lower appellate authority upheld the order of the Assistant Collector holding that the imported paper for Fax machine is a coated paper specifically covered by Heading 48.11 (paper coated, impregnated rolls or sheets) and there being no prohibition against printing paper being included in this Heading. He also accepted the reasoning of the Assistant Collector regarding the width of the paper. Hence this appeal before us.
3. We have heard Shri A.K. Patnaik, learned Consultant for the appellants and Shri L.N. Murthy for the respondent.
4. It is an admitted position that the goods are a coated paper. In the Scheme of Chapter 48, coated paper can fall under several Headings. Heading 48.10 covers “paper and paperboard, coated on one or both sides with kaolin (china clay) or other inorganic substances, with or without a binder, and with no other coating (emphasis supplied). Heading 48.11 covers ”paper, paperboard, cellulose wadding and webs of cellulose fibres, coated, impregnated, covered .... other than goods of Heading 48.03, 48.09, 48.10 or 48.18. Coated paper can also be covered under the residuary Heading 4823.59 as claimed by the appellants before the lower appellate authority. Heading 48.23 covers other paper, paperboard, cellulose wadding and webs of cellulose fibres, cut to size or shape; and 4823.59 covers other paper and paper board of a kind used for writing, printing or other graphic purposes.
5. In order to decide which is the most appropriate entry it will be necessary to refer to the Note to Chapter 48 and the HSN Explanatory Notes. The explanatory notes appearing under Heading 48.23 show that only such paper is covered by this entry which is not covered by previous Headings of the Chapter and whose width does not exceed 15 cms. Note 7 to Chapter 48 says that the Headings 48.01, 48.02, 48.04 to 48.08, 48.10 and 48.11 apply only to paper, paper-board, cellulose wadding and webs of cellulose fibres in strips or rolls of a width exceeding 15 cms. There is no dispute that the impugned goods in question are not cut to size or shape and further there is no dispute that the width of the strips/rolls exceeds 15 cms. Therefore, both by virtue of wording of Heading 48.23 and Note 7 to Chapter 48 the goods are squarely excluded from the purview of Heading 48.23 and fall for classification under Heading 4811.90.
6. The contention of the appellants that since the function of the paper is printing it is to be classified as printing paper as the end-use is in built into the Tariff Heading cannot be accepted in view of what has been set out above. The case law cited by the learned Counsel is not applicable to the facts of this case. In the case of Pudumjee Pulp and Paper Mills Ltd. v. Union of India, reported in 1990(09)LCX0060 Eq 1991 (051) ELT 0273 (Born.), the Hon’ble Bombay High Court dealt with classification of tracing paper - whether under TI 17(1) or 17(2) of the erstwhile CET. In paragraph 4 of the judgment, it was held that “tracing paper can fall under TI 17(1) provided it is used for the purpose of printing or writing .... The expression printing and writing makes it clear that while ascertaining under which part of the entry duty can be recovered user of the paper is very relevant. In our judgment tracing itself is a form of writing and tracing paper amounts to writing paper”. TI 17(1) had a wide coverage - it covered all uncoated and coated writing and printing paper other than poster paper. This decision in the context of the erstwhile CET cannot be applied to the facts of this case. The Department has classified the goods under the present Tariff which provides specific entries for papers in rolls/sheets and paper cut to size and shape and also provides for classification based on width of paper. In the case of Collector of Customs v. New India Industries Ltd. reported in 1990 (047) ELT 83, the Tribunal was only concerned with the eligibility of Document Raw Base Paper to the benefit of Notification 55/86-Cus. and the classification of the goods was not in dispute as both sides affirmed that the correct tariff sub-heading is 4802.02 of the CTA, 1975 as amended in 1985. Therefore, the Tribunal had no cause to look into that aspect. This is not the case before us where the classification itself is under challenge.
7. In the light of the above discussion we uphold the impugned order and dismiss the appeal.
Equivalent 1992 (61) ELT 754 (Tribunal)