Customs, Excise and Gold Tribunal - Delhi
Paharpur Plastics vs Collector Of Customs on 30 August, 1994
Equivalent citations: 1994ECR590(TRI.-DELHI), 1994(74)ELT445(TRI-DEL)
ORDER P.K. Kapoor, Member (T)
1. The applicants were heard on 4th April, 1994. Shri K. Narasimhan, ld. advocate stated that in respect of the Tribunal's Final Order No. 335/93-C, dated 29-10-1993 passed in the matter of applicants' appeal against order-in-appeal No. Cal-Cus-172/92, dated 16-4-1992 passed by the Collector of Customs (Appeals), Calcutta, Application No. C/ROM/14/94-C, dated 9-2-1994 was filed. He added that in that application the applicants had prayed for the rectification of mistake apparent on the face of the record since after stating in para 4 of the order that the question regarding partial exemption of the auxiliary duty on the imported goods in excess of 5% ad valorem was one of the issues arising for consideration, the Tribunal had not given any finding on that point. Shri Narasimhan submitted that after the application had been filed by the applicants on their own, another more comprehensive application prepared by him was also filed since even on the second point arising for consideration in the case i.e. whether the imported goods were eligible for the benefit of lower duty of 35% ad valorem in terms of Notification No. 231/88-Cus., dated 1-3-1988, the Tribunal had not given its finding on a number of points which were raised by him during the hearing of the appeal. Shri Narasimhan, therefore, pleaded that for these reasons Application No. C/ROM/14/94-C may be permitted to be withdrawn and he may be permitted to make his submissions on the second application bearing No. C/Misc./355/94-C. The Bench while reserving the decision on the prayer for the withdrawal of C/ROM/14/94-C and the question of maintainability of the second application directed Shri Narasimhan to make his submissions on Application No. C/Misc/355/94-C
2. Making his submissions on the Application No. C/Misc/355/94-C, Shri Narasimhan stated that during the hearing of the appeal he had drawn the attention of the Bench to Misc. application dated 17-5-1993 for carrying out amendment to ground (IX) on page 9 of the memorandum of appeal. This application was filed in the registry on 21-5-1993. He added that it was pointed out during the course of arguments that ground No. (IX) was a typographical error as it should have read ground No. (XI). He submitted that the Bench had permitted him to make his submissions on the said application since the ld. D.R. had no objection in this regard. He further submitted that in the copy of the written submissions filed by him before making oral submissions and in the revised ground (XI) it was explained that the Assistant Collector had lost sight of the fact that the claim for refund of auxiliary duty charged in excess was implicit in the way the duty rates were set out both in the original ground of claim as well as in the mode of calculation of duty amount since in the calculation sheet to the original refund claim it was indicated that as against auxiliary duty @ 45% levied on the goods the auxiliary duty chargeable was nil. He stated that in the revised ground it was also indicated that even though the appellants might not have been right in claiming "Nil" auxiliary duty but that could not be a ground for denying the benefit in terms of Notification No. 141/90-Cus., dated 30-3-1990 which specifically covers "Photo Multiplier (Relief Image) Printing Plates". He stated that for this reason it was indicated in the revised ground that the Collector (Appeals) was not correct in his view that the question of auxiliary duty not having been mentioned in the refund claim the Assistant Collector had rightly not given any decision in regard to auxiliary duty. Shri Narasimhan added that in the Final Order No. 335/93-C, dated 29-10-1993 passed by the Bench no mention has been made of the fact that ground No. (XI) of the memorandum of appeal was allowed to be substituted by the revised ground as set out in the appellants' application dated 17-5-1993. He stated that it was contended by him that the Assistant Collector being a quasi-judicial authority was duty bound to determine the components of different duties chargeable in accordance with law and particularly the 'auxiliary duty' which was reduced as per Notification No. 141/90-Cus., dated 20-3-1990 which specifically covered the goods in question. He contended that this being an error apparent from the record, is required to be rectified.
3. Continuing his submissions Shri Narsimhan submitted that there are obvious omissions in summing up of a number of submissions that were made by him in support of the appellants' claim for the benefit of lower basic duty of customs @ 35% ad valorem in terms of Notification No. 231/88-Cus., dated 1-8-1988 do not find any mention in para 2 of the Tribunal's order. The order sums up the other submissions on behalf of the appellants but these points have also not been dealt with in the order. In this regard he stated that the meaning of the expression "Printing Industry" was required to be determined in "common or trade parlance" on the basis of the test laid down by the Supreme Court in the case of Dunlop India v. UOI reported in 1983 (13) E.L.T. 1566 (SC) and Porritts and Spencers (Asia) Ltd. v. State Haryana - 1983 (13) E.L.T. 1607. He added that in this regard he had also submitted that the Collector (Appeals) had erred in restricting the scope of "printing industry" only to the activities such as printing of books, news papers, magazines etc. since the scope of the entry "other products of the printing industry in Chapter 49 -Heading 49.01" would inter alia include HDPE woven sacks when printed with "motif, characters or pictorial representations". He stated that he had also pointed out that this conclusion also emerges from the Explanatory Notes to Chapter 49 of the HSN. He added that during his oral submissions he had also pointed out that the scope of Heading 49.01 as covering all articles falling in any of the headings of Chapter 49 of HSN had been accepted by the Board vide Circular No. 11/91-Ex. 4, dated 15-10-1991 and by the Tribunal in the case of Rexor India Ltd. v. CCE, reported in 1991 (52) E.L.T. 392 wherein there is an implied admission that after 1-3-1987 when the word paper was omitted in Heading No. 49.01 printed plastic films became classifiable under that heading. He stated that he had pointed out that even on the basis of "common or trade parlance" test, printing as per new Encyclopaedia Britannica, XV Edition, would include the operation of applying under pressure a certain quantity of colouring agent to any surface which would include even plastic surface. He added that another submission made by him was that the claim that HDPE woven sacks when printed with motif, characters or pictorial representations would be classifiable only under Tariff Heading 49.01 as a product of printing industry was also in line with the broad guideline given in the decision of the Tribunal rendered in the case of Collector of Customs v. Garden Silk Mills, reported in 1993 (65) E.L.T. 251. He submitted that in support of his contentions in regard to the meaning of the phrase "Printing" and the scope of Heading 49.01 of the revised tariff, he had listed the following case law in the note which was submitted at the time of hearing :-
(i) Elgi Polytex Ltd. v. CCE -1988 (34) E.L.T. 404
(ii) Meteor Satellite Ltd. v. CCE -1990 (45) E.L.T. 697
(iii) Bombay Chemicals (P) Ltd. v. CCE -1990 (49) E.L.T. 431
(iv) Raj Packwell Ltd. v. UOI -1990 (50) E.L.T. 201 (M.P.)
(v) Metagraph (P) Ltd. v. CCE -1986 (26) E.L.T. 66
4. The learned counsel further submitted that the first sentence of the concluding para 5 of the order of the Tribunal is also erroneous as there is nothing in the judgment in the case of Collector of Customs v. Garden Silk Mills (supra) even remotely suggesting any connection between the Industrial licence held by the appellants' company and the conclusion that "textile printing" is not "printing industry". He submitted that the only ratio apparent in the aforesaid judgment is that the term "printing industry" cannot bring within its scope "printing of textile fabric" which is part of the "textile industry". He stated that he had on the other hand relied upon the judgment of the M.P. High Court in the case of Raj Packwell Ltd. v. Union of India which has not been considered by the Tribunal.
5. Shri Narsimhan contended that the impugned Order No. 335/93-C, dated 29-10-1993 has rightly summarised in para 4, the two questions which were required to be examined but the order failed to decide the question (ii) having regard to submissions made on behalf of both sides and in the context of ground, (xi) of the memorandum of appeal which was sought to be substituted in the course of the hearing. He argued that the rejection of the appeal in toto was therefore, an error apparent from the records which required rectification. He contended that the errors apparent from the records as pleaded by him in relation to the two questions which were to be decided in the appeal go to the root of the matter. He therefore, prayed that the order passed by the Tribunal may be recalled and the case may be re-heard. In support of his contentions he cited the following case law :-
(i) Smt. Pratibha Rani Samenta v. CCE, Calcutta - 1984 (15) E.L.T. 482 (Tribunal)
(ii) EID Parry (India) v. CCE, Madras - Misc. Order No. 48/87-C, dated 15-5-1987 passed by the Spl. Bench 'C - E/ROM/11/86-C arising out of the Final Order No. 183/86-C, dated 31st March, 86 in appeal No. ED/296/82-C
(iii) L.M.L. v. CCE -1989 (41) E.L.T. 534 (Tribunal)
(iv) Neelam Tin Indus. v. CCE -1987 (27) E.L.T. 315 (Tribunal)
(v) NTC Ltd. v. CCE -1987 (32) E.L.T. 783 (Tribunal)
(vi) Deep Motors Finance (P) Ltd. v. CC & CE -1990 (48) E.L.T. 573 (Tri.)
(vii) Kusum Products v. CCE -1989 (44) E.L.T. 534
(viii) Ma Tara Rope Works v. CCE -1992 (61) E.L.T. 282
(ix) Balamurugan & Balatmirli v. CCE -1989 (44) E.L.T. 591 (Tribunal)
(x) Shri Ram Bansal v. CC -1989 (41) E.L.T. 308 (Tribunal)
(xi) Laxmi Electronics Corpn. v. Commission of Income-tax -1990 (188) ITR 398 (All.)
6. On behalf of the respondent learned JDR, Shri Somesh Arora stated that there was an error apparent only in respect of point No. 2 in para 4 of Order No. 335/93-C, dated 29-1-1993 which was even formulated by the Bench for examination remained unexamined. He submitted that in regard to the question whether the appellants were eligible to the exemption in respect of basic duty on imported goods in terms of Notification No. 231/88-Cus., dated 1-8-1988, the Tribunal had arrived at a finding on the basis of an overall view of the submissions made and it was not necessary for it to deal with each and every point made on behalf of the appellants. He contended that by making detailed submissions at this stage in respect of eligibility of the disputed goods for the concession in terms of Notification No. 231/88-Cus., dated 1-8-1988 the appellants were seeking a review of the order which was not permissible. He, therefore, pleaded for the rejection of the request for rectification of the order passed by the Tribunal on the question of the admissibility of the exemption in terms of the said notification. He contended that since the appellants had prayed for the withdrawal of their application for rectification No. C/ROM/ 14/94-C, the subsequent Application No. C/Misc/355/94-C would not be maintainable. In support of his contention he cited the following case law :-
Berger Paints India Ltd. v. C.C., 1993 (68) E.L.T. 479
7. We have considered the submissions made on behalf of both sides. The applicants had filed the Application No. C/ROM/14/94-C under Sub-section (2) of Section 129B of the Customs Act 1962 for rectification of certain errors which were claimed to be apparent on the face of the record. However, before the application could be taken up for hearing, the applicants filed another application bearing No. C/Misc./355/94-C for rectification and prayed that the earlier Application No. C/ROM/14/94-C may be dismissed as withdrawn. It has been contended that after filing the first application the applicants realised that there were certain other errors apparent on the basis.of the record in the Tribunal's Final Order No. 335/93-C, dated 29-10-1993 which had not been taken into account in the application for rectification filed by them, they filed another more comprehensive application listing out all the mistakes apparent on the record in the said order passed by the Tribunal required to be rectified. The learned JDR has contended that the second application for rectification No. C/Misc/355/94-C would not be maintainable if the earlier application C/ROM/14/94-C is dismissed as withdrawn in view of the applicants' request for withdrawal of the same. In support of his contention he has cited the Tribunal's decision in the case of Berger Paints India v. Collector of Customs (supra) in which it was held that the second application for rectification of alleged mistake in an order rejecting an application for rectification is not maintainable under Section 129(2) of the Customs Act, 1962. In this case since the first application for rectification filed by the applicants was not taken up for consideration by the Tribunal and no order on the said application was passed, the Tribunal's order quoted by the ld. JDR is not relevant. The application for rectification No. C/ROM/14/94-C is, therefore, dismissed as withdrawn and the second application No. C/Misc/355/94-C is taken up for consideration.
8. On perusing the judgment and hearing both the sides, we find that the points made by the applicant in regard to para 5 of the Tribunal's Final Order No. 335/93-C are actually in the nature of arguments aimed at countering the Tribunal's findings and do not point out any error in the order necessitating rectification. However, we find that there have been following errors in the said order on the face of the record :-
(i) After listing out in para 4 of the order, the two points arising for consideration in the case, no order has been passed on the point whether the appellants' claim for refund of auxillary duty, they are time-barred.
(ii) Certain submissions made in support of the appellants' claim for the benefit of lower basic customs duty in terms of Notification No. 231/88-Cus., dated 1-8-1988 on the basis of the scope of Heading 49.01 of the revised tariff and the corresponding provisions of the Explanatory Notes of HSN supported by-case law, were omitted while summing up the submissions made on behalf of the appellants in para (2) of the orders and these points were also not examined in the order.
9. The applicants have contended that the error as pleaded by them in relation to two questions which are decided in the appeal go to the root of the matter. They have, therefore, prayed that the order passed by the Tribunal may be recalled and the case may be re-heard. In support of their prayer/they have cited the Tribunal's orders in the case of Neelam Tin Industries v. CCE and certain other decisions wherein it was decided to re-hear the appeals on the ground that the issue on which rectification was needed went to the root of the matter.
In our view the errors apparent from the face of the record in the order passed by us as listed above, do not go to the root of the matter necessitating the recalling of the order for re-hearing the appeal. For these reasons, we Order the rectification of the order in question in the following manner :-
(i) Delete para 2 of the final order and insert the following para 2 in the final order :-
New para 2:
On behalf of the appellants Shri K. Narasimhan, the learned advocate appeared before us. He stated that the Collector (Appeals) had decided the matter on the basis of the definitions of words "Printing" and "Printer" in the Chambers Dictionary. He added that the Collector (Appeals) had ignored the fact that the DGTD certificate dated 23-5-1989 produced by the appellants clearly indicated that they have a separate printing unit or section in their factory where they have installed printing machine for printing HDPE/PP Woven Sacks as per buyer's requirements. He contended that since the appellants were carrying out the activity of printing of manufactured HDPE/PP Woven Sacks according to the design and specifications of different customers, such activity has to be treated as of printing industry and not that of a plastic manufacturing unit. He argued that the Collector (Appeals) had taken too technical and narrow view without considering the matter in its proper perspective by confining the scope of printing industry to the activity of only printing of books and periodicals. He argued that as long as the activity of printing is carried out by a unit organised and run on an industrial scale, its product has to be treated as a part of the printing industry. He referred to the following case law in support of his contention that too technical or rigorous interpretation of notification has to be avoided :-
(i) Tamil Nadu Newsprint & Paper Ltd. v. Appraiser, Madras Customs and Ors., 1988 (33) E.L.T. 22 (Madras),
(ii) ITC Ltd. v. UOI, 1991 (53) E.L.T. 234 (Calcutta).
In this regard he further submitted that the meaning of the expression "Printing Industry" was required to be determined in "common or trade parlance" on the basis of test laid down by the Supreme Court in the case of Dunlop India v. UOI reported in 1983 (13) E.L.T. 1566 (S.C.) and Porritt's & Spencers (India) Ltd, v. State of Hanyana reported in 1983 (13) E.L.T. 1607 (S.C.)- He added that the Collector (Appeals) had erred for restricting the scope of "Printing Industry" only to the activities such as Printing of Books, News papers, Magazines etc. since the scope of the entry "other products of Printing Industry in Chapter 49 - Heading 49.01 of the Tariff" would inter alia include HDPE Woven Sacks without printed with Motif characters or Pictorial representations. He stated that this conclusion also emerges from the Explanatory Note to Chapter 49 of the HSN. He added that the scope of Heading 49.01 as covering all the articles falling in any of the headings of Chapter 49 of HSN had been accepted by the Board vide Circular No. 11/91-Ex. 4, dated 15-10-1991 and by the Tribunal in the case of Rexor India Ltd. v. CCE, reported in 1991 (52) E.L.T. 392 wherein there is an implied admission that after 1-3-1987 when the word paper was omitted in Heading 49.01 printed plastic films became classifiable under that heading. He stated that even on the basis of common or trade parlance test, printing as per Encyclopaedia Britannica, XV Edition would include the operation of the applying under pressure of certain quantity of colouring agent to any surface -which would include even plastic surface. He submitted that the claim that HDPE Woven Sacks when printed with Motif characters or Pictorial representation would be classifiable only under Tariff Heading 49.01 as product of Printing Industry was also in line with the broad guidelines given in the decision of the Tribunal in the case of Collector of Customs v. Garden Silk Mills reported in 1993 (65) E.L.T. 251. In support of his contention regarding the scope of Heading 49.01 of the revised tariff and the meaning of the phrase 'Printing' he cited the following case law :-
(i) Elgi Polytech Ltd v. CCE -1988 (34) E.L.T. 404,
(ii) Meteor Satellite v. CCE -1990 (45) E.L.T. 697,
(iii) Bombay Chemicals (P) Ltd. v. CCE -1990 (40) E.L.T. 431,
(iv) Raj Packwell Ltd. v. UOI -1990 (50) E.L.T. 201 (M.P.),
(v) Metagraph (P) Ltd. v. CCE -1986 (26) E.L.T. 66
(ii) After para 4 add the following new para 5 and re-number the existing para 5 on pages 5 to 7 of the final order as para 6 :
New para 5 In support of the claim that the imported Nyloflex Photopolymer Relief Image Printing Plates were eligible for concessional rate of basic customs duty in terms of Notification No. 231/88-Cus., dated 1-8-1988, the appellants have placed reliance on the scope of Heading 49.01 of the revised Central Excise Tariff and the corresponding provisions of the Explanatory Note of the HSN. In this regard they have cited a number of decisions in which it has been held that the Explanatory Notes to HSN have persuasive value for the purpose of determining the classification of goods under the Central Excise Tariff. They have also placed reliance on the judgment of the M.P. High Court in the case of Raj Packwell Ltd. v. UOI on the question of classification of HDPE Woven Sacks under the Central Excise Tariff. In this regard the decision of the Tribunal in the case of Rexor India Ltd. v. CCE (supra) has also been cited. In our view the submissions made by the applicants in regard to the scope of Heading 49.01 of revised Central Excise Tariff and the relevant notes to HSN and also various judgments in regard to the classification of HDPE bags and plastic films of various types cannot be of any assistance to them since as held by the Tribunal in the case of Collector v. OEN India reported in 1989 (42) E.L.T. 235 and in the case of Guestkeen William India Ltd. v. Collector reported in 1987 (29) E.L.T. 68, while interpreting an exemption notification, Interpretative Rules, Sections or Chapter notes as contained in the Tariff are inapplicable. Further as held in the case of Brakes India v. Collector reported in 1987 (31) E.L.T. 1030, Explanatory Notes to HSN do not have any legal backing and can only be of a persuasive value in the classification of goods. The decisions in regard to the applicability of the relevant Explanatory Notes to HSN for the purpose of determining the scope of Heading 49.01 of the tariff relied upon by the appellants are also not relevant since as observed by us earlier the relevant notification has to be interpreted strictly on the basis of the wording used therein. For the same reasons the judgment of the M.P. High Court in the case of Raj Packwell Ltd. v. UOI (supra) and the decision of the Tribunal in the case of Rexor India Ltd. v. CCE (supra) in which the classification of certain products under the relevant heading of the Central Excise Tariff was examined, can be of no assistance to the appellants. The appellants have also referred to the decision of the Tribunal in the case of Collector of Customs v. Garden Silk Mills (supra) and have contended that the broad guidelines given in the said decision support their case. At the same time they have referred to the judgment of the Supreme Court in the case of Dunlop India v. UOI, reported in 1983 (13) E.L.T. 1566 and have contended that meaning of the expression "Printing Industry" in the Notification No. 231/88-Cus., dated 1-8-1988 has to be decided on the basis of the common parlance test. Though the appellants have claimed that the decision of the Tribunal in the case of Collector of Customs v. Garden Silk Mills supports their case, we find that no such inference can be drawn from the said decision since in that case the Tribunal going by the common parlance test observed that different sectors of the industry acquired a name depending upon the name of the product that is produced in that sector and the proper nomenclature of the sector is based on the history of the product which has been manufactured in a particular sector. On these considerations the Tribunal observed that printing of textiles was the part of textile manufacturing unit as in the trade the printing of textiles is understood as a part of the textile industry and the printing of fabrics being related to the process of manufacturing of fabrics, this process could be considered as falling within the scope of the term textile industry. On these considerations the appellants' product which is woven HDPE Sacks which falls within the purview of plastic industry cannot be deemed as a product of printing industry since the activity of printing of HDPE Sacks is carried out within their industry.
(iii) After the re-numbered para 6, add the following new para 7: New para 7:
Before making his submissions on the findings in the impugned order, the learned Counsel for the appellants had prayed that the Misc, application filed by the appellants for being allowed to amend ground 11 of the appeal memorandum (erroneously numbered as ground No. 9 in the application). It was contended that the revised ground related purely to the rate of auxiliary duty chargeable on the imported goods and no new evidence was required to be filed in support of the revised ground. Having regard to the fact that the revised ground No. 11 relates only to the rate of auxiliary duty chargeable on the disputed goods and no new evidence in support of the revised ground is required to be filed, we allow the Misc. application and take up point No. 2 formulated in para 4 for consideration. It is seen that in the revised ground No. 11 and during his oral submissions the learned counsel for the appellants have contended that the lower authorities had erred in holding that no claim for refund seeking the re-assessment of auxiliary duty on the disputed goods @ 5% in terms of Notification No. 141/90-Cus., dated 30-3-1990 was filed by the appellants. According to the appellants' claim for refund of auxiliary duty charged in excess was implicit in the way duty rate was set out both in the original ground of claim as well as in the mode of calculation in the sheet filed with the original refund claim. In this regard we find that the only ground listed in the original claim for refund filed by the appellants before the Assistant Collector was that the disputed goods were re-assessable in terms of Notification No. 231/88, dated 1-8-1988 as products of 'Printing Industry' @ 35% + Nil + 20% C.V. There is no indication at all either in the grounds of claim filed along with the application for refund or the calculation sheet annexed with the claim that the benefit of exemption of auxiliary duty in excess of 5% was also sought in terms of Notification No. 141/90-Cus., dated 30-3-1990. Under these circumstances we find that the Collector (Appeals) had rightly observed that there being no claim for refund of auxiliary duty in terms of Notification No. 141/90-Cus., dated 30-3-1990, there was no decision on that issue by the Asstt. Collector and on this ground, he rejected the appeal. We find no infirmity in the findings of the Collector (Appeals) since the claim for refund for auxiliary duty in terms of Notification No. 141 /90-Cus., dated 30-3-1990 not having been filed by the appellants before the Asstt. Collector, their claim on this ground made for the first time before the Collector (Appeals) merited rejection as time barred. This view finds support from the Tribunal's decision in the case of Modi Rayon & Silk Mills v. CCE, reported in 1987 (29) E.L.T. 933 wherein it has been held that the ground for claim not amendable from the date of the initial claim when.it requires elaborate examination of new facts/material.
(iv) Renumber the existing para 6 as para 8.
The captioned Misc. Application and ROM Application are disposed of accordingly.