Customs, Excise and Gold Tribunal - Delhi
Parksons Printers vs Collector Of Central Excise on 1 January, 1800
Equivalent citations: 1996(86)ELT603(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. The appellants are aggreived with the order-in-appeal, dated 23rd August, 1989 passed by the Collector(Appeals), Bombay, classifying the product "Record Bags" under sub-heading 4818.13 of the Central Excise Tariff Act, 1985.
2. The assessee had filed two classification lists No. 1.87-88, dated 13-7-1987 and 2/87-88, dated 28-7-1987 claiming the classification of the product "Record Bags" under sub-heading 4818.19 of CET with nil rate of duty. The Assistant Collector approved both the classification lists as claimed by the assessee. Aggrieved by the said order, the Revenue filed the refund petition before the Collector who has set aside the said approval and classified the said goods under sub-heading 4818.13 at the rate of duty of 35%. The Revenue had contended before the Collector that the product 'record bags' are 'sleeve' used for packing of gramophone records as a container. The 'sleeves' are classifiable under sub-heading 4818.12/4818.13 of the first schedule to the Central Excise Tariff Act, 1985 depending upon the paper used. The record bags were manufactured out of Duplex board and were correctly classifiable under subheading 4818.13 of the said schedule attracting Central Excise duty at 15% ad valorem in terms of Notification No. 67/82-A, dated 28-2-1982 as amended subject to the conditions laid down therein. The assessee had argued that although the item is classifiable under Heading 48.18, the item is to be classifiable only under sub-heading 4818.19 as printed cartons, boxes are covered by sub-headings 4818.11, 4818.12 and 4818.13. The Assistant Collector had relied on the dictionary meaning for the terms 'sleeves' which was assailed by the Revenue before the Collector.
3. We have heard Shri Gopal Prasad, the Learned Advocate for the appellants and Shri A.K. Madan, the Learned SDR for the Revenue.
4. The Learned Advocate submitted that the item in question would fall only under residuary sub-heading 4818.19 as "Other" attracting nil rate of duty and is not "carton boxes' or a 'case' to be brought within sub-heading 4818.13. He drew our attention to HSN entry in sub-heading 4818.50 at page 685 of the HSN which reads "other packing containers including record sleeves and, therefore, submitted that as 'sleeves' were not clubbed with 'cartons, boxes and cases' [in] HSN, therefore, they have to be taken out from that category and placed in the residuary sub-heading 4818.19 as "Other". He also submitted that if the item is considered as container then, in that event sub-heading 4818.13 is not an appropriate heading as container has not been grouped in the sub-heading and, therefore, it has to be classified in the residuary sub-heading "Other". He pointed out that the Collector has considered the item 'record bags' as a container. As container is not classifiable under sub-heading 4818.13, the classification is, therefore, required to be done under sub-heading 4818.19 only.
5. The Learned DR submitted that the item is not a "container" but it is a "case" and is required to be classified under sub-heading 4818.13. He also submitted that HSN is not aligned and, therefore, it cannot be referred to.
6. We have carefully considered the submissions made by both the sides and have perused the Tariff Heading. The Tariff Heading 48.19 is noted hereinbelow:
"48.19 CARTONS, BOXES, CASES, BAGS AND OTHER PACKING CONTAINERS, OR PAPER, PAPERBOARD, CELLULOSE WADDING OR WEBS OF CELLULOSE FIBRES: BOX FILES, LETTER TRAYS, AND SIMILAR ARTICLES, OF PAPER OR PAPERBOARD OF A KIND USED IN OFFICES, SHOPS OR THE LIKE.
Cartons, boxes, containers and cases (including flattened or rolded boxes and flattened or folded cartons), whether in assembled or unassembled condition :
4819.11 - Intended for packing of Nil
match sticks
4819.12 -- Printed cartons, boxes, 35%
containers and cases
4819.19 -- Other Nil
4819.90 - Other 12%"
7. The item in question is in the nature of cardboard cover and it has been referred to as record bags. This record bag is used for placing gramophone records. The Collector has considered this item as a container and has placed it in a category of "cases" which falls under 4818.13 and has rejected the assessee's claim for placing it in the residuary item attracting nil rate of duty under sub-heading 4818.19 as "other".
8. The Hon'ble Supreme Court has considered the question of classification of plates, cartons, tube lights, apple trays and other similar products and not considered it to be containers in terms of expression "container" as defined in the dictionary and glossaries of packing terms as in the case of G. Claridge & Company Ltd. v. Collector of Central Excise as reported in 1991 (52) E.L.T. 341. The Hon'ble Supreme Court after referring to the definition of the expression "container" held that the expression "container" is used in three different senses : in a broad sense, it means a receptacle which contains, in a narrower sense, it means a receptacle in which articles are covered or enclosed and transported; and in a more limited sense, it means enclosures used in shipping or railway for transport of goods. If used in a broad sense, 'container' could include a tray because it is a receptacle which contains articles and, therefore, an egg tray would be a 'container'. But an egg tray would not be a 'container' in a narrower sense because articles placed in it are not covered or enclosed and they cannot be transported as such. It is, therefore, the Hob'ble Supreme Court, held that it is necessary to ascertain whether the expression 'container' in Item 17 of the old Tariff and Heading 48.18 of the new Tariff has been used in the broad sense to include all receptacles or in a narrower sense to mean those receptacles in which the articles are covered or enclosed and transported. For this purpose, the context in which the word 'container' has been used in these entries has to be examined. In item 17 of the old Tariff the word 'container' is preceded by the words 'boxes, cartons, bags and other packing' and in Heading 48.18 of the new Tariff the 'container' is preceded by the words 'cartons, boxes' and is followed by the words 'and cases'. The Hon'ble Supreme Court further held that it is a well-accepted canon or statutory construction that when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. It is based on the principle that the words take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. It is further held that considering the expression 'container' in the context in which it is used in the relevant tariff items, the Hon'ble Supreme Court opined that the said expression has to be construed to mean 'packing containers' which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles. Viewed from this analogy drawn by Hon'ble Supreme Court, we have no doubt that the item in question is a 'container' because it serves the purpose of storage of the gramophone record. Now, the question is as to whether the container can be classified under sub-heading 4818.13 which includes only "other printed cartons, bags and cases". It is not the case of the Revenue that the expression 'container' and 'cases' are one and the same. There is a separate description of the term 'container' and 'cases' in sub-heading 4818.12 and it is only 'cases' which are included under 4818.13. Therefore, the container not having been placed along with "printed cartons, bags, and cases", its classification in the residuary heading "Other" under 4818.19 is required to be accepted as argued by the Learned Advocate. Even in the HSN "record sleeves" have not been placed with the cartons, bags and cases. Therefore, there is merit in this appeal. The impugned order is set aside and the appeal is allowed with consequential relief, if any.