Customs, Excise and Gold Tribunal - Tamil Nadu
Cce vs A.J. Stationery (P) Ltd. on 13 February, 2001
Equivalent citations: 2001(96)ECR538(TRI.-CHENNAI)
ORDER G.A. Brahma Deva, Member (J)
1. This appeal arises out of and directed against the impugned order No. 285/96 dt. 20.12.1986 passed by the Commissioner (Appeals) Bangalore. The Department has came in appeal on the ground that the issue has not been decided in terms of Board's Circular No. 16/88-CEX. 8 dt. 10.8.1988. In that Circular it was mentioned that the following aspects have to be considered while deciding the issue:
1) Pre-dominance of weight and value.
2) The essential character to the product and the role of a constituent material in relation to the use of the goods.
3) How the produce is known in the commercial/trade parlance?
According to the Department similar issue has been decided in the case of A. Nagaraju Bros. v. State of Andhra Pradesh .
2. Shri K. Parameshwaran, appearing for the respondents submitted that the dispute is in respect of classification of products viz. photo albums, lever arch files and ring binders. He submitted that the ratio of the decision of the Supreme Court in the case of A. Nagaraju Bros, referred to above is not applicable to the facts of this case. Further more the issue has been properly analysed as can be seen from page 7, 8,9 & 10 of the impugned order which is reproduced below:
Para 7: Chapter Note l(f) of Chapter 48 specifies that paper reinforced plastic sheeting or one layer of paper or paper board coated or covered with a layer of plastics, the later constituting more than half the total thickness will not fall under Chapter 48. Thus conversly if the paper or paper board covered with a layer of plastics in which the paper or paperboard constitutes more than half the total thickness such articles would get classified in Chapter 48. On examination of the OIO dt. 31.7.1996/29.8.1996, I find that the chemical examiner has stated that the photo albums in question contain 79.6% paper. Therefore, in view of the above cited chapter note, as well as the contention in the grounds of appeal, the paper content being predominantly photo albums are rightly classifiable under S.H. 4820.00. Apart from the predominancy criterion, it is also seen from the HSN that a albums are classifiable under Heading 43.20 as clearly stated on page 687. Thus, I hold that photo albums have been rightly classified under S.H. 4820.00.
Para 8: As in the case of Photo albums, ring binders and Lever Arch files are said to contain (by the chemical examiner) 87.03% and 81.5% of paper. The HSN also reveals that ring binders find specific mention under Heading 48.20. Thus ring binders have been correctly classified under S.H. 4820.00 of the Central Excise Tariff.
Para 9: In respect of Lever Arch file, the Assistant Commissioner in his order after examination of the product has categorically stated that these are different from box files and is more like a flat file folder. In as much as the paper content in lever arch file is 81.5% and also in view of the fact that, as per HSN, folders, file covers, files are classifiable under Heading 48.20, Lever arch files being similar to flat files, are classifiable under S.H. 4820.00.
Para 10: The Department has relied upon the decision in the case of A. Nagaraju Bros. v. State of A.P. . This case basically deals with the predominance criterion and common/trade parlance, in respect of VIP suit cases. The criterion of predominance has prevailed in the cited case and the Hon'ble Supreme Court has accordingly held that moulded suit cases being predominantly made of plastic have held them to be plastic goods. Regarding common/trade parlance, the court has held that the yard stick of trade parlance cannot be treated as the only one. I do not see how this decision advances the Department's case. While no doubt the predominance criterion prevails which has the backing of chapter notes, the trade parlance has not been relied upon and is not relevant here. Nevertheless, the issue of predominance of the main raw material settles the classification issue in this case.
3. On a carefull consideration and the submissions made by both sides that point at issue has been properly analysed as could be seen from the findings, we do not find any informity in the impugned order. Revenue has also not placed any evidence on record to substantiate their claim. Accordingly the appeal filed by the Department is hereby dismissed.
4. Cross objections is also disposed of in the above terms.
(Pronounced and dictated in the Open Court)