TaxTMI 
TaxTMI 
1994 (2) TMI 266
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....le to the Central Excise Tariff Act, 1985. The classification of "New Maggi-2 Minute Noodles" with tastemaker inside was approved by the Assistant Collector under sub-heading 1902.10 as a preparation put up in unit containers against the protest of the assessee for their claim under sub-heading 1902.90. The assessee's plea was that the packing in which the Noodles were offered for sale was not a unit container and was, therefore, not liable to Central Excise duty under sub-heading 1902.10. Against the order-in-original No. 70/CE/AC/87, dated 21-12-87 of the Assistant Collector, Central Excise Division, Patiala, the assessee filed appeal with Collector (Appeals), Chandigarh, who vide her Order-in-Appeal No. 1248/CE/ CHD/91, dated 30-7-91 set aside the orders of the Assistant Collector and accepted the appeal filed by the assessee holding that the Maggi was not put up in a unit container and was not liable to duty under sub-heading 1902.10. The said goods, she observed, attracted nil rate of duty under sub-heading 1902.90. The process is as under :- (i) Printed laminate in reel form is loaded onto a rod which is fitted to the wrapping machine and is t....
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....nd. The Tariff description contained in M/s. Voltas case is different without any reference to unit container therein whereas here Section Note under Section IV to CETA 1985 defines Unit containers to means a container whether large or small (for example tin, can, box, jar, bottle, bag or carton, drum, barrel cannister) designed to hold a pre-determined quantity or number. The packing in which noodles are offered for sale satisfy this definition. The learned Senior Departmental Representative further argued that the pre-existence of container before goods are packed therein is not envisaged in this definition, nor can it be inferred therefrom. It only requires that container should be designed to hold a pre-determined quantity. Further the pouches or the sachets in which the noodles are packed will come in the meaning of the bag going by the Dictionary meaning of the term bag. It is not material for classification sub-heading 1902.10 that the pouches should come into existence first. The learned Senior Departmental Representative further referred to Technical Authority on Vertical and Horizontal pouch making in the McGraw-Hill Encyclopedia of Science and Technology, the learned Sen....
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....rt in the case of Asia Tobacco Company Limited v. Union of India reported in 1992 (58) E.L.T. 418 (Mad.) and 1993 (66) E.L.T. 55 (Mad.), in the case of Asia Tobacco Company Ltd. v. Assistant Collector of Central Excise. The learned Counsel urged that the definition in Section IV is only for Unit container but not for container. The common understanding of container is a item which can hold something as has been laid down in the decisions relied upon by the respondents. The learned Counsel also submitted that the case law reported in 1989 (39) E.L.T. 376 (Mad.) relied upon by the Department is of no avail because it is now well settled by the Supreme Court decision reported in 1985 (19) E.L.T. 15 (S.C.) in the case of MSCO Pvt. Ltd. v. Union of India and Others that in construing a word in the Act meaning given to it in other Acts should not be resorted. 3. The submissions made by both the sides have been carefully considered. The question is whether the noodles manufactured by the respondents cleared packed in printed plastic film are classifiable under sub-heading 1902.10 and dutiable or under sub-heading 1902.90 CETA, 1985 attracting nil rate of duty. Section Note to Sect....
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....e Central Excise Tariff had come up for detailed consideration before the Tribunal in the case of Collector of Central Excise, Chandigarh v. Himachal Pradesh Horticuluture Produce Marketing & Processing Corporation Ltd., reported in 1988 (34) E.L.T. 160 (Tribunal). The Hon'ble President had resolved a difference of opinion in that case. Paras 42 to 46 and Para 48 are reproduced below :- "The respondents have argued that the concentrate sold in the carboys was not "put up in unit containers". The reasons given are briefly that - (a) they did not contain a predetermined quantity; (b) they were not labelled as required under the Fruit Products Order; and (c) the containers were not sold along with the goods but were durable and returnable. As against these arguments it has been argued on behalf of the Revenue that it is not necessary for the purposes of Item 1B that the container must be sold alongwith the goods. It has also been argued that the use of the expression "unit container" does not require that the containers should be full, or (what comes to the same thing) that the contents ....
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....t only food products but also toilet preparations, medicines etc.) carries the immense advantages of immediate identification, easy choice, convenience of transport and preservation. At the basis of this entire system of marketing and consumer satisfaction is the method of packing in "unit containers". In most cases (if not all) the container is not returnable; in many cases it is not durable, particularly if it is of cardboard or aluminium foil. For obvious reasons the container has to be just large enough to hold the predetermined quantity of the contents. To pack half a litre of fruit syrup in a bottle which can hold one litre would not only be wasteful but would also subject the contents unnecessary movement, perhaps with a loss of quality. Further, it would arouse doubts in the customer that he is being cheated. It can therefore be very well understood that no intelligent manufacturer would pack prepared or preserved foods (or indeed any similar product of common consumer use) in a container which is .not full or practically so. Nor would a prudent customer readily buy a product in a container which does not appear to be full. The above observations on the methods of mar....
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....kaging ........ The controversy however is that when a preserved food is put in unit containers and not sold as unit containers but is merely used as a means or method of preservation of milk by the petitioner itself and what is sold to the consumer is milk only, whether the levy is attracted. If the language of the entry had been to the effect prepared or preserved food ordinarily intended for sale including preparations of vegetables, there would perhaps have been no difficulty because it would have been a case where the preserved food is sold .......... But then the entry has qualified the said levy by using the words 'put up in unit containers and ordinarily intended for sale'. It is, therefore, clear that if a prepared or preserved food is not put in unit containers and sold as such, the levy is not attracted. The levy is, therefore, dependent upon putting the prepared or preserved food in the unit containers and which is ordinarily intended for sale ............ Merely because the preservation requires that the powder should be placed in some or other form of containers, it cannot reasonably be said that it attracts the duty created by the said entry. The plain and reas....
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....acking of noodles in them and that they are only wrappers. But it has to be noted that the item at Sr. No. 6 of the Schedule to Bombay Sale Tax Act, 1959 considered in the Voltas judgment is not pari materia in its tariff description with heading 19.02 CETA with which we are concerned. Serial No. 6 of that Schedule covered foodstuffs and food provisions of all kinds when sold in sealed containers of weight not exceeding five kilograms in each container, whereas here we have to interpret the terms put up in unit containers and ordinarily intended for sale. The rationale behind such description in CET has, as pointed above, been gone into by the Tribunal in the Himachal Horticulture Corporation case supra and its ambit has been set out in the Andhra Pradesh High Court decision. The Tribunal decision in M/s. Ajay Electrical Industries Ltd. v. Collector of Central Excise case was regarding paper and paper board under Tariff Item 17 CET and the question was whether the open ended paper sleeves and drums manufactured by the appellants therein and which were folded at the ends to hold electric bulbs would fall under Item 17(4) CET which covered "Boxes, cartons, bags, and other packing ....
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.....". "Primary packaging may be performed starting with fully pre-formed packages requiring only filling and closing, or, may begin with packaging materials that are formed in-line with, the filling and closing operations". (emphasis supplied) "flexible pouches may be formed in a converter's plant and received in stacked form; but more commonly pouches are formed in-line with filling from flat roll stock. Two basic types of form-fill-seal equipments are employed, vertical and horizontal......". "Both systems represent efficient means of providing economical flexible packaging........ Many variations on these basic systems exist for special applications......... In yet another variant, the product may be power-fed into a tube formed horizontally with the actual formation and closure of the material accomplished in the same manner as on vertical equipment but turned 90º." It may be recalled in this context that the Supreme Court in the case of Porrits & Spencer (Asia) v. State of Haryana - 1983 (13) E.L.T. 1607 (S.C.) = AIR 1979 SC 300 had observed that in interpreting a term in a fiscal legislation it should be borne in mind that it is not a static concept and it should ....