TaxTMI 
TaxTMI 
2000 (4) TMI 572
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....d covered in the show cause notice is 1-7-1986 to 31-3-1991 while the demand has been restricted to a period of six months. Appeal No. E/988/92-C has been preferred against the order passed by the Collector of Central Excise (Appeals), Bombay who has upheld the order of the Assistant Collector classifying the item in dispute under Chapter sub-heading 4823.90 read with Notification 135/89-C.E., dated 12-5-1989. The classification list in question was filed w.e.f. 19-3-1991 onwards. 2. We have heard Shri J.S. Agarwal, learned Advocate and Shri H.K. Jain, learned SDR. 3. The process of manufacture of instrumentation charts is as under : ROLL/STRIP CHARTS (i) Cutting the jumbo rolls to the right size with the slitting machines. (ii) Mounting the blocks on the printing machines. (iii) Arranging the vertical line printing ruling, discs on the printing machine shaft. (iv) Fixing the range and the time stamping as per customer's specifications. (v) Setting the vertical perforation mechanism according to specifications. (vi) Setting the Horizontal perforation,....
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.... Other NIL The appellants rely upon Note 11 to Chapter 48 in order to support their contention that instrumentation charts fall under Central Excise Tariff Heading 49.01 as they are products of the printing industry. Note 11 states that "except for the goods of Heading No. 48.4 or 48.21, paper, paper board, cellulose wadding and articles thereof, printed with motives, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in Chapter 49". In the context of the above Chapter Note, what has to be determined is whether the printing on the charts is primary or merely incidental to the primary use of the charts. The admitted position is that the charts are used for the purpose of recording temperature, pressure, humidity, electric current, voltage, etc. in various industrial installations. The charts are used in various plants, particularly in chemical industries, to record variables or parameters of temperature, pressure, etc. during various stages of the processes or during every batch operation. The recording on the charts helps to identify any variations in the quality of the product or in any operation of the equipment....
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....the assertion by the appellants in their product literature that the charts are not products of printing industry is to be kept in view, as it would reflect trade understanding that the charts are not products of the printing industry. 5.1 The decision of the Apex Court in the case of Garden Silk Mills Ltd. v. Collector of Customs, Bombay reported in 1997 (91) E.L.T. 263 (S.C.) = 1997 (19) RLT 833 (S.C.) does not advance the case of the appellants - the Supreme Court held that the benefit of Notification 169/77-Cus., dated 6-8-1977 would not be available to rubber blankets imported by the appellants for printing fabrics, since the goods were for use in the textile industry and not for use in the printing industry, for which purpose alone, the benefit could be extended in terms of the Notification. 5.2 The decision of the Tribunal in the case of Lakshmi Cements v. Collector of Customs, New Delhi reported in 1996 (84) E.L.T. 271 (Tri.) = 1996 (14) RLT 36 also does not help the appellants. In that case the dispute was only regarding the sub-heading under Chapter 49 viz. sub-heading 4901.90 or 4911.91 and the Tribunal held that the goods in dispute viz. folders containi....
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.... and like computer stationery would be classifiable under Heading 48.20. In fact, the graph papers used by school and college students are commonly available in any good stationery shop and going by the trade parlance or common parlance, these are required to be considered as articles of stationery falling under Heading 48.20. 10. As mentioned above, ordinary graphs and charts which are not made to any customer specification or for any particular specified instrument but are of general use as graphs and charts - whether in schools, colleges, offices or labs., factory etc. etc. will be classifiable under 48.20 and therefore, it will be required to be seen what was the relevant notification, if any, which prescribed the effective rate of duty in respect thereof. 11. Insofar as the charts are concerned that is those which are made in accordance with the customers' specifications for a particular type of instrument(s) according to the precise requirement of that instrument(s) and specific purposes for which they were meant it is required to be seen whether, if so, designed, they could be considered as parts of those instruments and dealt with accordingly because parts a....
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....hat it is not a case of suppression or mis-statement of facts but on a dispute regarding interpretation and change of opinion. In these circumstances, the demand beyond the normal period of six months was time-barred. Therefore, the Collector was justified in restricting his order for the period of six months but even for this period, he was required to keep in view the aspects noted above before passing his order. In view of the above discussions, I set aside the impugned order and remand the matter to the Commissioner for reconsideration of the same in accordance with the law. He should keep, inter alia, the above observation in view and allow the appellants an opportunity of being heard in person before passing the order. Sd/- (S.K. Bhatnagar) Vice President DIFFERENCE OF OPINION In view of the difference of opinion between the Hon'ble Member (J) and the Vice President, the matter is submitted to the Hon'ble President for reference to a third Member on the following points : "Whether the appeals were required to be rejected in view of the findings of the Hon'ble Member (J) or were required to be remanded in view of the observations of the Vice President." Sd....
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....). The matter requires to be remanded. 16. The learned JDR has submitted that the relief confines in the appeal is to set aside the classification of instrument action chart and demand of duty. The dispute pertains only to items 1 & 2 of the classification list at page 66. The blank printed charts are consid­ered by the learned Vice President as computer stationery which is a wrong approach. It is item No. 3 in the classification list for which there is no dispute. As per paras 4 and 10 of the order he has dealt with the charts not made to the customers' specification which is not at all the subject matter of the appeal. Chapter Heading 49.01 pertains to generally printing not for specific purpose and chart is defined. The issue No. 1 at Page 46 is not all in contest (items 3 & 4 of the classification list). Only issue No. 2 is relevant. In para 12 the learned Vice President has gone beyond it. Prior to 1986 printing industry was given up and now it cannot be continued. Classification list can be altered due to revision of tariff as the old tariff entry 68 is split up in new tariff under different headings. Headings 4823.90 and 4901.90 cover residuary entry even now. 49....
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....ata and estoppel. The power of the Tribunal is dealt with in 1997 (89) E.L.T. 16 in the case of Hindustan Ferodo Ltd. v. CCE that the Tribunal, being a final fact finding body, has to decide on facts and law. Duty has to be assessed correctly on the instrumentation charts, which is a sophisticated one. 18. Perused the appeal memorandum, and the documents enclosed in both the appeals, and the Bench order. I have taken note of the contentions of both the sides. The tariff entries both under the Central Excise Act and HSN are also considered. Before considering the facts on hands the case laws cited by both the sides require consideration. (a) 1995 (77) E.L.T. 485 (S.C.) = 1995 Supp (3) SCC in the case of BPL Pharmaceuticals Ltd. v. CCE deals with the interpretation of statutes - Taking statute - Value of earlier understanding and precedents - Tariff law - Effect an old classification on substitution by new tariff entry. It is held that there was no good reason to change the classification merely on ground of coming into force of the new Tariff Act. In para 30, it is held that merely because there is any difference in the tariff entry the product will not change its ch....
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....dertaken. (vide paras 9 to 11). (e) In 1998 (98) E.L.T. 406 (T) in the case of Ajanta Print Arts v. CCE it is held that hanging cards are posters with advertising printed thereon along with sample of advertised article, displayed in the shop for advertising the articles attached to them. Printing of an advertisement is not merely incidental to their primary use but plays a dominant role, hence, classifiable under Chapter 49 and not under Chapter 48 of the Central Excise Tariff Act. (f)  1994 (72) E.L.T. 753 (Tri.) = 1994 (3) RLT 984 deals with HSN Explanatory Notes and in paras 28 & 29.1 it is held that they are useful guide only when headings are aligned with CETA - there being material difference between the two, not to be followed - no persuasive value. (g) In 1988 (38) E.L.T. 571 (S.C.) in the case of Elson Machines Pvt. Ltd. v. CCE it is held that Excise authorities are not estopped from taking a view different than in the approved classification list and there is no estoppel against the law. Rule 173B of the Central Excise Rules and Section 11A of the Central Excises and Salt Act are considered. (h) In 1997 (89) E.L.T. 16 (S.C.) in the case of ....
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....operly classifiable under Chapter 49.01 of the CETA and relied upon the dictionary meaning of the said word and also of Words and Phrases of Central Excise and Customs, 1991 edition. Ultimately, after hearing the parties the Assistant Collector has classified the charts under 4823.90 holding that the character is a set of letters or figures or graphic or symbol which represents some data for processing and the charts of the appellant do not represent any figures or letters representing any data which is inscribed on these charts when the same are fit to an instrument and the definition applies to such graph which represents some data which are fed by a computer or a self-recording scientific apparatus. Roll and sheets and printed self-recording apparatus are classified under 4823.40 of HSN Explanatory Notes and the CETA, 1985 has been aligned on the basis of HSN Explanatory Notes. It remains the same, i.e. whatever is covered under 4823 of the HSN Explanatory Notes will also be covered under 40 of the CETA. 21. Now the Collector (Appeals) has confirmed the finding of the Assistant Collector regarding classification of charts under 4823.90 after considering all the contentio....
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....sed on specific requirements. They are used on instruments to record physical measurements of temperature, pressure, humidity flow and liquid levels, electric current and voltage, magnetic and seismic information. It is used in the industries more particularly chemical industries to ensure the optimum efficiency of the plant as well as the quality of the product and it is necessary to measure and control a number of parameters. To ensure that they are maintained during the various stages of the process or during every batch operation and it is necessary to maintain a record of the same. To achieve this, the recordings charts are installed in the plant. Such records also help to identify any variation in the quality of the product or in the operation of the equipment. So from the above material it is clear that charts are industrial consumer products. In view of the above position, the discussion of the Hon'ble Judicial Member in the light of the Tariff Entries of 48 of Chapters 48 & 49 which is relevant to the product involved in this case has to be agreed with, because Note 11 to Chapter 48 contended by the appellant is considered in detail, and also the applicability of Chapter H....
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....& 11 of the order. The discussion in para 12 of the order that the appellant has basically engaged in printing paper for use as stationery or instrumental chart has to be kept in view and it has to be seen whether that products could be considered as a product of printing industry in view of the fact that Heading 4901.90 also covers hydrographic or similar charts of all kinds. This observation is not borne out in the tariff heading according to which 4901.90 is described as other goods. 4901.20 covers maps and hydrographic or similar charts of all kinds including atlasses, wall maps, topographical plans and globes printed. The product of the appellant apparently does not come within any of these descriptions. So under these circumstances the coverage of the HSN Heading 4823.40 for certain types of charts is a question to be considered does not arise because in the next sentence it is observed that the instrument charts do not occur either under Heading 48.23 of HSN or sub-heading 4823.40 which covers rolls, sheets and dials printed for self-recording apparatus. Regarding that aspect it is observed that it is for a general use and for particular purpose and general purpose self-reco....