TaxTMI 
TaxTMI 
2014 (12) TMI 74
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.... facts relevant to the case are briefly as follows. The appellant, M/s. GTC Industries Ltd. (GTC in short) are manufacturers of cigarettes. They also manufacture printed shells and slides of paper board which are used in the packing of cigarettes both captively as also in their Baroda unit. The said shells and slides are also cleared to M/s. J&K Cigarettes Ltd. vide Finance Bill, 1982, a separate tariff entry was created for printed boxes and cartons under Tariff Item 17(4) of the Central Excise Tariff. The appellant filed a classification list vide Classification List No. 2/82 w.e.f. 28-2-1982 claiming the benefit of exemption under Notification No. 66/82-C.E., dated 28-2-1982. The said C/L was approved by the jurisdictional Deputy Commissioner who classified the products (shells and slides) manufactured by the appellant under TI 17(4) and also denied the benefit under Notification No. 66/82. Aggrieved by the said decision, the appellant preferred an appeal before the Commissioner of Central Excise Appeals who vide OIA No. A-2217-2219/B.I.-439-440/BD/883/82, dated 24-12-1982 rejected the appeal. The said decision was challenged by the appellant before the Delhi High Court vide CWP....
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....52) E.L.T. 241 (S.C.)], the Hon'ble Apex Court allowed the Revenue's appeals and restored the order of the Asst. Collector dated 8-6-1982 approving the classification of shells and slides under TI 17(4). In pursuance thereto, a demand notice dated 23-9-2003 was issued to the appellant proposing to recover the refund of Rs. 58,71,708/- sanctioned earlier vide order dated 15-11-1999 which was confirmed by the impugned order under challenge. 3. The ld. Counsel for the appellant made the following submissions :- (1) The refund of Rs. 58,71,708/- has been validly made in view of the judgments of the Hon'ble High Court of Delhi affirmed by the Hon'ble Apex Court wherein it was held that outer shells by itself cannot constitute boxes. The subsequent judgment of the Hon'ble Apex Court dealt with a situation where both the shells and slides covering all sides were used for packing of cigarettes and in that context it was held that shells and slides put together would constitute a box. The said decision does not in any way overrule the previous decision that shells by themselves would not constitute a box as held by the Hon'ble High Court of Delhi in ITC Lt....
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....sp; C.B.E. & C. Circular dated 23-7-2002 (b) Suntrack Electronics P Ltd. [2003 (156) E.L.T. 163 (S.C.)] (c) Voltas Ltd. [2006 (202) E.L.T. 355 (Tri.-Bang.)] (d) Overseas Engineers [2007 (215) E.L.T. 513 (Tri.-Ahm.)] (e) Videocon Narmada [2009 (234) E.L.T. 311 (Tri.-Ahm.)] 4. The ld. Addl. Commissioner (AR) appearing for the Revenue strongly refuted the contentions raised on behalf of the appellant. His submissions can be summarized as follows :- (i) The refund of Rs. 58,71,708/- was sanctioned to the appellant in pursuance to the CEGAT Order Nos. 91 to 102/1994, dated 3-3-1994 [1994 (71) E.L.T. 547 (Tribunal)]. The said order arose from C/L 2/82 wherein the jurisdictional Asst. Collector classified the shells and slides manufactured by the appellant under TI 17(4) and liable to duty accordingly. The CEGAT order, dated 3-3-1994 was challenged by the Revenue before the Hon'ble Apex Court and the Hon'ble Apex Court vide order, dated 6-2-2003/13-3-2003 held that shells and slides together would constitute a box and ....
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....ne of the respondents and wherein the CEGAT order dated 3-3-1994 was challenged, the Hon'ble Apex Court held as follows :- ".........It is apparent that a cigarette packet containing shell and the slide covering all sides would be a box. Further, there is no question of double taxation because excise duty on cigarettes is separately levied and in regard to packet containing cigarettes, duty is to be levied on the basis of tariff item 17. In the result, appeals are allowed. The impugned order passed by the Tribunal is set aside and the orders passed by the Assistant Collector of Central Excise are restored. There shall be no order as to costs." 5.2 Vide the clarificatory order dated 13-3-2003, a slight correction was made to the above order as follows :- "In the instant appeals, the last paragraph of our judgment dated 6th February, 2003 be corrected as under :- "The impugned order passed by the Tribunal is set aside to the aforesaid extent and the orders passed by the Assistant Collector of Central Excise are restored to that extent. There shall be no order as to costs." 5.3 The clarification was sought by the respondent as to the point that the Hon'ble Ape....
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....box as held by the Hon'ble Apex Court. The balance of duty refund pertains to duty paid on shells and slides cleared to Baroda unit and to the job-worker J&K Cigarettes. It is an undisputed fact that both shells and slides are complementary components of a set of box and they do not have a separate usage by themselves. It is also not in dispute both these complementary components have been used together in the packing of cigarettes. If that be so, they have to be considered as one single piece or item, even if they are in disassembled or unassembled condition. As per the General Interpretative Rules 2(a), a reference to an article includes a reference to that article, incomplete or unfinished, or to the article disassembled or unassembled. Therefore, articles in unassembled or disassembled condition has to be considered as a whole for the purposes of classification. The ratio of the decisions of this Tribunal in the case of Goel Private Ltd. (supra) and of the Larger Bench in Sony India Ltd. [2002 (143) E.L.T. 411 (Tri.-LB)] would apply. 5.6 As regards the reliance placed on the various case laws by the appellant, the facts involved in those cases are different and distingu....
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.... that judicial utterances made in the setting of the facts of a particular case." "Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper." In view of the above, the case laws relied upon by the appellant are of no avail as the facts involved are different and distinguishable. 5.8 As regards the principle of restitution urged by the Revenue, the Hon'ble Apex Court has elucidated the same as follows in Kerala State Electricity Board v. MRF Ltd. [(1996) 1 SCC 597] "24. There is no manner of doubt it is an imperative duty of the Court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the Court. The principle of restitution as enunciated by the Privy Council in Rodger's case (supra) has been followed by the Privy Council in later decisions and such principle being in conformity to justice and fair play be followed. It should, however, be noted that in an action by way of restitution, no inflexible rule can be laid down. It will be the endeavour of the Court to ensu....