Customs, Excise and Gold Tribunal - Delhi
Hargovinda & Co. Exports Pvt. Ltd. And ... vs Collector Of Customs on 8 February, 1988
Equivalent citations: 1989(19)ECC263, 1988(34)ELT371(TRI-DEL)
ORDER D.C. Mandal, Member (J)
1. A common issue is involved in these three appeals and as such they were heard together and are being disposed of by this common order. All these three appellants imported Metalised polyester films of thickness of 0.025 mm/25 micron. The question to be decided is whether these goods are exempted from additional duty of Customs under Notification No. 228/76-Cus., dated 2-8-1976. The Collector (Appeals), by the impugned order, held that those imported Metalized polyester films were foils and did not qualify for exemption under this Notification.
2. We have heard Shri Sogani for the appellants and Shri Shishir Kumar for the respondent. Shri Sogani has argued that all these three cases are squarely covered by this Tribunal's order No. 257-258/87-C, dated 25-3-1987 and the judgments of (i) Madras High Court in the case of M/s. Precise Impex (P) Ltd. vs. The Collector of Customs, Madras, reported in 1985 ECR 1111(Madras) = 1985 (21) ELT 85(Madras), (ii) Bombay High Court in the case of. A.V. Jain, Bombay vs. Collector of Customs, Bombay (Writ Petition No. 2136 of 1986) and (iii) Calcutta High Court, reported in 1987 (28) ELT 11 (Calcutta) in the case of. Continental Marketing (P) Ltd. v. Union of India. He has, therefore, prayed that these appeals may be allowed following the above cited decisions. Arguing for the respondent, Shri Shishir Kumar has reiterated the reasoning given in the impugned order.
3. We have considered the records of the case and the arguments of both sides. We find from paragraph 10 of the Bombay High Court judgment in the case of M/s. A.V. Jain (supra) that the Hon'ble High Court distinguished "foil" from "film" and held that a thin film upto 0.025 mm. in thickness can be recognised as a "foil". The Hon'ble High Court also observed that although no lower limit of thickness of film has been specified, very thin film of dimension of thickness not exceeding 0.025 mm. can be optionally termed as "toil" and hence distinguished from film. In this connection, paragraph 10 of the said judgment is reproduced below :-
"This brings me to the technical data relied upon by parties. Let me first set out the pleading of respondents on this aspect of the matter. In their affidavit-in-reply, the relevant excerpts read thus :-
"If the thickness of the film is above 0.025 mm., the item in question would not amount to 'Foil'. However, the thickness of the film in the instant case is 25 micron which is equal to, 0.025 mm and therefore the same comes under the term 'Foil'. Since the foil which is nothing but very thin film of a thickness not exceeding 0.025 mm the same is expressly excluded from the exemption under the said Notification. As the Petitioners' goods fall within the expression 'Foil' in all respects, it is outside the purview of the said Notification.... In effect film and foil upto a thickness of 0.025 mm is synonymous. Technically and scientifically the term 'foil' is very thin film having a thickness upto 0.025 mm. The goods in the present petition being metalised polyester film of a thickness of 25 micron (0.025 mm) therefore fall within the term 'foil'.... The expression 'Foil' scientifically and technically means very thin material or sheeting or film having a thickness "upto 0.025 mm."
Reliance is placed upon an opinion given by the Chief Chemist of the Customs. A copy of the report has been made available and therefrom I reproduce the portion relied upon :-
"Film A sheeting having nominal thickness not greater than 0.25 mm.
Foil -- Note. In the rase of some materials this term is reserved for the thinner materials, e.g., unsupported PVC film is less than 0.003 inch (0.0762 mm).
'Modern Plastics' by Harry Rarron (Page 355) defines technically foil, film and sheet according to thickness.
'Foil' is the term applied to materials which are made in continuous rolls and is less than 1/1000th of an inch thick (0.0254 mm). Foil is familiar as the well-known wrapping materials such as 'Cellophane'.
In the book 'Basic Chemistry of Textile Preparation' by S.R. Cockett and K.A. Hilton (page 75) it is stated that thickness sheet plastics of thickness upto 1 mil (0.025 mm) are termed as 'foil'.
From the above information it can be said that a think film (upto 0.025 mm. in thickness) can be recognised as a 'foil'. Although no lower limit of thickness of film has been specified, very thin film of dimension of thickness not exceeding 0.025 mm. can be optionally termed as 'foil' and hence distinguished from 'film'."
In the case of. Precise Impex (P) Ltd. v. Collector of Customs, Madras [1985 (21) ELT 85 (Mad.) .- 1985 ECR 1111], the Hon'ble Madras High Court observed in paragraph 10 of the judgment that the contention of the Revenue that though the word "films" was not used in the Table to the Tariff Notification, yet "films" would fall within the ambit of words 'sheets and foils whether they are rigid or flexible, was a perverse approach. As in the present cases before us, the goods imported in the case of M/s. A.V. Jain were metalised polyester films. Plastic metalised films were imported by M/s. Precise Impex (P) Ltd. Plastic films were imported by M/s. Continental Marketing Pvt. Ltd. In all those three cases, the Hon'ble High Courts of Bombay, Madras and Calcutta held that those imported films were exempted from additional duty of Customs under Notification No. 228/76-Cus., dated 2-8-1976. Respectfully following those judgments, we also hold in the present appeals that the metalised polyester films imported by the appellants were eligible for exemption of additional duty of customs under the said Notification. In the result, we set aside the impugned orders and allow these appeals with consequential relief to the appellants.