TaxTMI 
TaxTMI 
2010 (1) TMI 1046
X X X X Extracts X X X X
X X X X Extracts X X X X
....under CSH No. 48204000 and have cleared them on payment of duty. They filed a refund application dated 10-8-2008 claiming refund of Rs. 10,04,905/, which later on was amended to Rs. 9,88,548/- vide the letter dated 6-11-2009. The appellant have claimed the said refund on the ground that the goods being manufactured by them were wrongly classified under Chapter 48 as dutiable goods whereas, the goods being manufactured by them were the "Documents of Title" falling under Chapter 49, which were exempted from Central Excise duty and the duty paid by them was liable to be refunded to them. The appellant in support of their contention relied upon the Order-in-Appeal No. 165-166-167/CE/Appl/KNP/2009 dated 16-7-2009 in the case of M/s. Tirupati Stationery Pvt. Ltd. of the Commissioner (Appeals Kanpur and the CBEC Circular No. 11/91/CX.4 dated 15-10-1991. 3. The department after considering the facts disallowed the refund on following ground :- (i) That the contention of appellant that the duty was paid by them due to wrong classification of good by the department was not correct, in as much as, under SRP system they themselves classified the goods under Chapter 48 and paid dut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e and beg to submit as under making elaborate submission with regard to samples in question : - (i) Sample No. 1 is not disputed by the Department and has been accepted by Committee of Commissioner as a Document of Title in the case of M/s. Tirupati Stationers Pvt. Ltd., Magarwara, Unnao. (ii) Sample No. 2, 5 and 6 is a printed leaflet in the form of money receipt and the leaflet are not in single sheet and the said money receipt cannot be taken as a book, which as per legal glossary is defined as a collection of sheets of paper or other substance blank, written or printed, fastened together so as to form a material whole, especially that fastened together at the back and having a cover. The said Document of Title is also carved out in Chapter Note 4C of Chapter 49 having an overriding effect. That by no stretch of imagination the said leaflet in the form of money receipt cannot be taken as Receipt Book. (iii) Sample No. 3 is Employees Provident Fund Statement having a fiduciary value which is a Document of Title. (iv) Sample No. 4 is the invoice which again is a Document of Title without which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....specially that fastened together at the back and having a cover." That the Appellant say that the Appellant's product being a Money Receipt and particularly Sample No. 2 and all other item also fall with in the umbrella of specific definition of Chapter Note 4(c) of Chapter 49 Central Excise Tariff Act, 1985, which reads as under : - "4. Heading 4901 also covers : (a).............. (b)............... (c) Printed parts of book or booklets, in the form of assembled or separate sheets or signatures, constituting the whole or a part of a complete work and designed for binding. That the Appellant say that a careful reading of the Chapter Note 4(c) specifically lays down as printed part of books as booklet and then there is a "," after that meaning thereby a product falling under Chapter 49 are not books but printed part of books as booklet. Further, meaning thereby that any product already taken the form of Receipt Book would not fall under chapter 49. Further the said Chapter Note words as "in the form of assembled or separate sheets" meaning thereby that the said sheet can be with or without carbon and in continuous form and the concluding part of C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction notes. That the Appellant is engaged in the work of, besides others, the printing of cash/cheque/draft deposit receipt leaflet which are not provided to the customer in binded or book form, in any manner. In such circumstances, the question is whether the Article in question shall fall in which of the following two Tariff sub-heading as claimed by the Appellant, namely the applicability of which arises when classification is not possible on the basis of tariff entry read with Chapter Notes and Section Notes. Hon'ble Supreme Court in CCE v. Simplex Mills Co. Ltd., reported in 2005 (181) E.L.T. 345 has held that Rule 1, of the General Rules for the interpretation, gives primacy to the Section and Chapter Notes, which should first be applied; That the Learned Respondent misdirected himself in law in wrongly classifying the goods and not following the provisions of Central Excise Tariff Act, 1985, which had overriding effect and before further going into arena of Document of Title, the Appellant say that the impugned order is liable to be set aside on the above referred grounds alone; That as detailed above in the Grounds of Appeal the Appellant say that as held by the Learned ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t submitted a written brief alongwith the scanned copies of the samples of the printed papers under dispute for classification. He submitted :- * That the sample No. 1, being a receipt issued by M/s. Sahara India in lieu of payment made to the depositor at the time of maturity, has been accepted by the department as document of title; * That the sample Nos. 2, 5 & 6 are printed leaflet in the form of money receipt, which cannot be regarded as book as classified under Chapter 48 because book is "a collection of sheets of paper or other substance, blank, written or printed, fastened together so as to form a material whole, especially that fastened together at the back and having a cover"; * That Sample No. 3 is Employees Provident Fund Statement having a fiduciary value, which is a Document of title; * That Sample No. 4 is the invoice which again is a Document of Title without which the person holding the same cannot even claim either the goods or cannot claim any damages, warranty and guarantee. Moreover, Possession of invoice i.e. document of title is symbolic of ownership of the goods that are described within it. Further in the usual course of business or financing invoic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the order. The order also contains so many grammatical errors and spelling mistakes, which shows that the order has been passed in hurry and without any proper scrutiny. Even, in one case the sentence itself is incomplete. 8. I observe that the adjudicating authority has also shown his disagreement with the Order-in-Appeal No. 165-166-167/CE/Appl/KNP/2009 dated 16-7-2009 of the jurisdictional Commissioner (Appeals) passed in the case of appeal filed by M/s. Tirupati Stationery Pvt. Ltd. but, for that he has referred the items being manufactured by this appellant whereas, the same was passed in respect of the goods being manufactured by the said manufacturer. His observation that the Commissioner (Appeals) has not given any reasoning while passing the order for change in classification, are childish and clearly appear to have been given without application of mind. In my opinion, while recording such observations, the adjudicating authority has not gone through the appellate order properly wherein, each and every document was mentioned and discussed, supported with the reasoning. The applicability of contents of CBEC circular and the interpretations given in the HSN were also ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eipt printed for M/s. Sahara India, which is used by them for issuance to the depositors who deposit money in their schemes. It contains the name of the depositors. 2. 03 This is a Employee's Provident Fund Statement of Account for the Half-Year printed for State Bank of India that is issued by the bank to the their employees, which gives the details of contribution made by a particular employee, the nominations, the advances, the withdrawals, the closing balance and the amount due for refund. 3. 04 This is the invoice printed for M/s. Gail (India) Ltd., which the company issues to its buyers. It contains the name of buyer, description, quantity & value of goods, place of delivery etc. 4. 05 This is the receipt printed for M/s. LIC, which LIC gives to its customers as acknowledgement for the payment received in cash or cheque against policy bonds. It contains the detail of policy proposal number, name of depositor amount deposited etc. 5. 06 This is also the receipt printed for M/s. LIC, which LIC gives to its customers as acknowledgement for the payment received in cash or cheque against policy bonds. It contains the detail of policy proposal number, name of depositor ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the seller or seller's agent), it serves as a demand for payment. Similarly, in respect of samples mentioned at Sl. No. 7 & 8, the appellant has submitted that they are the attendance sheet and admission card, respectively, which again are Document of title, without which no person can prove his attendance and identity in the exam and also cannot enter the examination hall for giving exam. 11. From the submissions of the appellant, I notice that their basic contention is that the documents in question are classifiable Chapter heading No. 49 of the Tariff and not under Chapter 48. In this regard, they have also placed reliance upon various section notes, chapter notes and explanatory notes of Chapter 48 & 49. They have also placed reference upon the clarification issued by the CBEC vide Circular No. 11/91-CX.4 Dated 15-10-1991, wherein it has been clarified in para 4.1 that "(i) Printed paper covered by Chapter 49 HSN would fall under Sub-heading 4901.90 CETA. Therefore, products which (where necessary, after completion and validation) have a fiduciary value in excess of intrinsic value e.g. cheques, forms, stock certificates, bills of lading, documents of title, rail tickets....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er (possessor) to receive, retain, sell, or otherwise dispose of the document and the goods or property listed therein. The Employee's Provident Fund Statement of Account is also a certificate given by the trustee of the fund, which confers a right upon the holder or its legal heir to claim the amount mentioned therein. The attendance sheets and the admission card are the documents without which no person can prove his attendance in the exam and also cannot enter the examination hall for giving exam. The nature of the both the said documents clearly show that the same are not transferable in nature therefore, they are clear example of document of title. 14. I have also gone through the relevant explanations given in the section notes, chapter notes and explanatory notes of Chapter 48 & 49 given in the Tariff & HSN vis-a-vis the clarification issued by the CBEC vide Circular No. 11/91-CX. 4, dated 15-10-1991. In Chapter Heading 4820, the products of general nature and use, which can be regarded as stationery i.e. Register, account books, notes books, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, excise books, blotting-pads, binders (lo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s (e.g. dates and names) are classified in this heading. Stock, share or bond certificates and similar documents of title and cheque forms, which also require completion and validation, are however classified in heading in heading 4907." Under the said heading at Sl. No. 6 of the inclusion clauses, it has been mentioned that "tickets for admission to places of entertainment (e.g., cinemas, theatres and concerts), tickets for travel by public or private transport and other similar tickets" are also included therein. 17. After going through the circular relied upon by the appellant, I notice that in para 3, it has been clarified that "Heading 4901, being identically worded as Chapter 49 in HSN and Central Excise Tariff Act, will, in the absence of anything contrary in Chapter and Section Notes, have the same scope as Chapter 49, HSN. It will cover all articles falling in any of the Headings of Chapter 49, HSN. Therefore, products having fiduciary value in excess of the intrinsic value, like cheques, forms, bond, share certificate, stamp impressed postal stationery, documents of title, etc., will be covered by Sub-heading 4901.90, CETA. Similarly, tickets, printed circulars, let....