TaxTMI 
TaxTMI 
2014 (12) TMI 1408
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....are covered by Chapter head 39.23 of the Central Excise Tariff Act, 1985. Therefore, the products are covered by Schedule Entry C-I-29 of the BST Act and liable to tax @ 4%. However, in order to seek an appropriate clarification the Applicant approached the Commissioner of Sales Tax, Maharashtra State, Mumbai under section 52 of the BST Act and requested to determine the tax rate for the following articles, sold on 2nd/4th August, 2003. (a) Plastic Steel Kettle of different sizes. (b) Plastic Ghamelas of various sizes. (c) Plastic Buckets of various sizes. (d) Plastic Ghagar and Kalshi of various sizes. (e) Plastics Mugs of various sizes. (f) Lids of Buckets of Plastic. (g) Dalga of Plastic of various sizes. 3 The Commissioner of Sales Tax passed an order on 20th February, 2004 holding that above items are not covered by Schedule Entry C-I-29, and held them as covered by Schedule Entry C-II-93. Being aggrieved and dissatisfied with the determination order, the Applicant original Appellant approached the Tribunal and filed Appeal no.54 of 2004. The Tribunal passed an order on the said Appeal and a copy of the same has been annexed to this paper book. That order passed....
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....ics (but not including insulated ware) 6 Even this Notification was subsequently superseded and a third Notification dated 9th May, 2002 came to be issued. That is the governing Notification and which came into force from 10th May, 2002. That contains in all 168 entries. Serial no.155 is the Entry which is relied upon. It refers to heading no.39.23 and the description of the article is "articles for conveyance or packing of goods of plastics, stoppers, lids, caps and other closures, of plastics, but not including insulated wares and bags of the type which are used for packing of goods at the time of a sale for the convenience of the customer including carry bags". Mr.Thakar has heavily relied upon this Notification and all the prior Notifications for their opening words and namely, the Government of Maharashtra notifies Industrial inputs and packing materials whether sold under a generic name or any brand name for the purposes of the Entry C-I-29. In such circumstances, according to Mr. Thakar when industrial inputs and packing materials covered from time to time under the heading or sub-headings as the case as listed below the Central Excise Tariff Act, 1985 are brought in and in....
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....ed the Reference paper book and the three Notifications which have been compiled by the Counsel for our assistance. 9 At the outset we must refer to certain principles and which have been laid down by the Hon'ble Supreme Court. They guide us in interpreting the entries and the Notifications of this nature. In a recent case reported in AIR 2012 SC 1681, the Commissioner of Central Excise vs. M/s. Wockhardt Life Science Ltd., the Supreme Court reviewed and summarized these principles in the following words: "30. There is no fixed test for classification of a taxable commodity. This is probably the reason why the `common parlance test' or the `commercial usage test' are the most common [see A. Nagaraju Bors. v. State of A.P., 1994 Supp 20 (3) SCC 122]. Whether a particular article will fall within a particular Tariff heading or not has to be decided on the basis of the tangible material or evidence to determine how such an article is understood in `common parlance' or in `commercial world' or in `trade circle' or in its popular sense meaning. It is they who are concerned with it and it is the sense in which they understand it that constitutes the definitive inde....
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....fied in a residuary entry, in the presence of a specific entry, even if such specific entry requires the product to be understood in the technical sense [see Akbar Badrudin v. Collector of Customs, (1990) 2 SCC 203 : (AIR 1990 SC 1579); Commissioner of Customs v. G.C. Jain, (2011) 12 SCC 713 : (AIR 2011 SC 2262)]. A residuary entry can be taken refuge of only in the absence of a specific entry; that is to say, the latter will always prevail over the former [see CCE v. Jayant Oil Mills, (1989) 3 SCC 343 : (AIR 1989 SC 1316); HPL Chemicals v. CCE, (2006) 5 SCC 208 : (2006 AIR SCW 2259); Western India Plywoods v. Collector of Customs, (2005) 12 SCC 731 : (AIR 2005 SC 4405 : 2005 AIR SCW 5249); CCE v. Carrier Aircon, (2006) 5 SCC 596 : (2006 AIR SCW 3910)]. In CCE v. Carrier Aircon, (2006) 5 SCC 596 : (2006 AIR SCW 3910), this Court held: "14... There are a number of factors which have to be taken into consideration for determining the classification of a product. For the purposes of classification, the relevant factors inter alia are statutory fiscal entry, the basic character, function and use of the goods. When a commodity falls within a tariff entry by virtue of the purpose for w....
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....or the conveyance or packing of goods, of plastics, stoppers, lids, caps and other closures, of plastics but not including- (a) insulated wares (b) bags of the type which are used for packing of goods at the time of a sale for the convenience of the customer including carry bags. 12 A bare reading thereof, therefore would denote as to how the Industrial inputs and packing materials have been described. They have been brought in the single Notification and with this broad and wide description only on the footing that these are not ordinary plastic materials and utilized for household or domestic purpose. Once they are articles for conveyance or packing of goods, of plastics, stoppers lids, caps and other closures, of plastics and specifically excluding the bags of the type which are used for packing of goods at the time of a sale for the convenience of the customer including carrying bags then, there was no occasion for the Tribunal to ignore its plain wording. The description itself is such that the Revenue was aware that the Notifications have been issued and with Reference to the headings or sub-headings under the Central Excise Tariff Act, 1985. That the Industry requires not j....