1991(01)LCX0130

BEFORE THE CEGAT, SPECIAL BENCH ‘C’, NEW DELHI

S/Shri K.S. Venkataramani, Member (T), S.L. Peeran, Member (J) and N.K. Bajpai, Member (T)

NEW INDIA INDUSTRIES LTD.

Versus

COLLECTOR OF CUSTOMS

Order No. 82/91-C, dated 16-1-1991 in Appeal No. C/3017/89-C

Advocated By: Shri A.S. Sunder Rajan, Consultant, for the Appellants.

Shri M. Jayaraman, SDR, for the Respondent.

[Order per: S.L. Peeran, Member (J)].. - In this appeal, the appellant has challenged the reasoning given by the Collector of Customs (Appeals), Bombay while discussing their appeal No. 939/89 BCH, dated 23-5-1989. Although they do not wish to contest the final result of the order in rejecting their claim for exemption from payment of Customs duty for their imported product

“Baryta Coated Raw Base Paper” under Notification No. 55/86-Cus., dated 17-02-1986, Shri A.S. Sunder Rajan, learned Consultant for appellant has vehemently submitted that the goods in question having been classified under Chapter Headings 4810.11 and 4810.12 as printing and writing paper cannot for the purpose of exemption from payment of duty under Notification No. 55/86-Cus., dated 17-02-1986 be rejected as not of printing and writing paper but imported for manufacturing photographic paper. The benefit of the said Notification can be denied only on the basis of the grammage of product being more than 180 gms., as the stipulated grammage for benefit from exemption of duty under the said Notification has been stipulated by substance of weight of 25 g/m2 and above and not exceeding 180 g/m2.

2. Similar matter from the same importer had come up for consideration in another appeal No. 2225/89-C and by Order No. 1266/90-C the appeal was disposed of but it was held by me in that Order that the grounds for denying the benefit under the said Notification has to be only on the basis of grammage and not on the reasons given by the learned Collector. Shri M. Jayaraman, learned SDR submitted that the learned President by his concurring opinion in that order had not so specified the said reasoning adopted by me and the finding given by me in Order No. 1266/90-C is not binding. However, I wish to point out that learned President has also not disagreed with my reasoning and hence the finding given in the main order written by me is conclusive order of the Bench.

3. It is not in dispute that the product has been classified under Chapter 4810.11 and Chapter 4810.12 of C.T. Below the Headings 4810.11 and 4810.12 by Parenthesis the following description is given :-

“Paper and paperboard of a kind used for writing, printing or other graphic purposes, of which more than 10% by weight of the total fabric content consists of fibres obtained by a mechanical process.”

Shri M. Jayaraman, learned SDR pointed out that chapter sub-heading 4810 refers to other types of paper other than printing and writing also. But the reading of Parenthesis below 4810.11 and 4810.12 refers to writing, printing or other graphic purposes only. The Revenue could have filed an appeal against the classification under this heading but they have accepted it and therefore, the Notification in question refers to printing and writing paper under 48.02, 48.10, 4823.51, 4823.59, 4823.70. Therefore, the only reason for rejecting the claim for benefit from duty has to be on the basis of grammage, as the classification of the product is not in question. The submission of Shri A.S. Sunder Rajan has been that this product undergoes several processes before it is cleared by importer as photographic paper by paying duty under Heading 37.02 of CET, therefore, the imported product has to be taken in the condition in which it is imported and not in its end-use. There is force in this submission, as it is likely that this product is capable of being under for printing and writing purpose also, as could be gathered by its classification. Incidentally, the importer is using the imported paper in manufacture of photographic paper also. So long as the trade understands it as printing & writing paper on its general uses, and at the time of its import, it has been considered it so, for the purpose of classification, then it follows that for the purpose of the Notification in question, the availability or denial of exemption has solely to be on the basis of the conditions stipulated in the Notification.

4. In the instant appeal, the appellants had filed a Bill of entry in respect of which he had sought for the refund except and Bill of entry which is dated 17-5-1988. The other 8 bills of entry are all pertaining to April, May and June, 1986. The details of bills of entry and payments made by the appellants are noted by the Assistant Collector in order-in-original. The Notification No. 55/86-Cus., dated 17-2-1986 came into force on 28-2-1986. The relevant portion of the notification is noted below -

“Effective rates of duty for newsprint, printing and writing paper :- In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in column (3) of the Table hereto annexed and falling under the Heading No. or sub-heading No. of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) specified in column (2) thereof, when imported into India, from so much of that portion of the First Schedule as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table.

TABLE

This notification shall come into force on the 28th day of February, 1986."

5. As can be seen from the above notification, the substance by weight of grammage pertaining to printing and writing paper is not incorporated in this notification. This notification was amended by Notification No. 291/87-Cus. dated 11-8-1987 in which the printing and writing paper in column No. 3 of the Table of notification against the sub-heading No. 4801.00 in col. 2 has been amended by that “having substance by weight of 25 g/m and above but not exceeding 180 g/m2". Therefore, the qualification of the exemption by amendment has been incorporated only by amendment notification. This follows that till the date of amendment the appellants’ claim for refund under the Notification No. 55/86-Cus. will be admissible. The main Heading No. 4810.11 or 4810.12 indicates weightage not more than 150 g/m2 weighing more than 150 g/m2 respectively. Even by the grammage indicated in the tariff heading and grammage indicated in bill of entry, the goods will not be disentitled for the exemption. There is no dispute with regard to grammage in these appeals. Therefore the claim for refund is admissible in respect of 8 bills of entry as indicated in the order-in-original which are pertaining to the period March, April and May, 1986. The appellant is also entitled for refund pertaining to the 9th Bill of entry dated 17-5-1988 as the grammage indicated in the Bill of entry is 140 gms. The Notification No. 291 /87 dated 11-8-1987 restricts up to 180 gms. Therefore, this 9th Bill of entry will also be covered by the said notification. The appeal is allowed in respect of refund of all the nine bills of entry with consequential relief.

Equivalent 1993 (68) ELT 577 (Tribunal)