TaxTMI 
TaxTMI 
TaxTMI 
2023 (10) TMI 1253
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..... The impugned order dt 09.12.2011 is modified to this extent." 2.1 Appellant 1 is engaged in manufacture of Corrugated Boxes and Laminated Paper falling under Chapter 48 of the First Schedule to Central Excise Tariff Act, 1985 at Rudrapur Uttarakhand. Appellant 2 is partner in the Appellant 1. 2.2 Notification No 49/2003-CE and 50/2003-CE both dated 10.06.2003 provided exemption to the specified goods being manufactured in the state of Uttarakhand and Himachal Pradesh. Appellant 1 filed a declaration vide its letter dated 21.04.2005 to claim the benefit of the said exemption in respect of goods manufactured by it. 2.3 They effected their first sale of laminated paper on 15.03.2008 after filing their quarterly return in respect of the said product as per Notification No 4/2008-CE (NT) dated 01.03.2008. They vide their letter dated 13.08.2009 filed a declaration claiming the benefit of exemption under Notification No 8/2003-CE dated 01.03.2003. 2.4 Divisional Assistant Commissioner sought the turnover details of the appellant 1 for the year 2006-07, 2007-08 & 2008-09 which was furnished by the appellant 1 on 3.11.2009. Revenue was of the view that appellant 1 had wrong claimed t....
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.... Eight Only) upon M/s Well Tech Packaging under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002 for contravention of provisions of law. (5) I impose a penalty of Rs 5,00,000/- (Rupees Five Lacs Only) upon Shri Raj Kumar Gaba Partner of M/s Well Tech Packaging under Rule 26 of the Central Excise Rules, 2002. 2.9 Appeals filed by the appellants have been disposed of by the Commissioner (Appeal) by the impugned order referred in para 1 above. Aggrieved these appeals are filed before tribunal. 3.1 We have heard Shri Atul Gupta and Shri Prakhar Shukla Advocates for the appellants and Shri Sandeep Pandey, Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel submits: The appellant is eligible for benefit under area based exemption notification as no show cause has been issued to them for deny the benefit of the said notification. Their finished namely laminated paper is not classifiable under heading 48114900 which is in negative list of items specified under these exemption notification. Admittedly appellant had claimed the classification under the said heading earlier, but it is settled posit....
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....t of the specified goods as per area based exemption notification claimed by them. There is no estoppel to claim the correct classification of goods as has been held by the Hon'ble Supreme Court in case of Dunlop India Ltd observing as follows: "40. At one stage Mr. Sanghi pointed out that in certain Bill of Entry of Dunlop India Limited, their Agents, Messrs Mackinnon, Mackenzie & Co., Private Ltd., gave the I.C.T. Item No. 87 with regard to the imported V.P. Laitex. This, according to Mr. Sanghi, clearly shows how the appellants themselves have understood the matter. There is, however, no estoppel in law against a party in a taxation matter. In order to clear the goods for the Customs, the appellant Agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for, we do not attach any significance to this aspect of the matter pointed out by counsel. The question is of general importance and must be decided on its merits." In case of Elson Machines Pvt Ltd, Hon'ble Supreme Court observed as fo....
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....aper, paperboard, cellulose wadding and webs of cellulose fibres, coated, impregnated, covered, surface-coloured, surface decorated or printed, in rolls or rectangular (including square) sheets of any size, other than goods of the kind described in heading 4803, 4809 or 4810'. The appellant, however contended that their product is more appropriately classifiable under chapter sub heading 48239013 which covers "Packing and Wrapping Paper". The description of sub heading 4823 of central excise tariff is reproduced is as under: Heading No Sub Heading No Description of goods 4823 OTHER PAPER, PAPERBOARD, CELLULOSE WADDING AND WEBS OF CELLULOSE FIBERS, CUT TO SIZE OR SHAPE; OTHER ARTICLES OF PAPERPULP, PAPER, PAPERBOARD, CELLULOSE WADDING OR WEBS OF CELLULOSE FIBERS 482390 -other ---Braille paper, cellulose in sole board or sheet; packing and wrapping paper; paper for cigarette filter tips; paper cone for loud speaker; patterns made of papers for leather footwear, leather garments and goods; patterns made of paper for articles of apparel and clothing accessories, products consisting of sheets of paper or paperboard, impregnated, coated or covere....
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....4900 and there was no occasion to change the classification of the product. I place reliance on the case laws of STERLING LABS Vs C C Ex CHENNAI - 2011 (274) ELT 422 (Tri-Chennai), MAHAVIR PLASTICS Vs C C E MUMBAI 2010 (255) ELT 241 (Tri-Mumbai). Now as far as the availability of the benefit of exemption under Notification No 50/2003-CE dated 10.06.2003 is concerned, it is accepted by the appellant also that sub heading 48114900 is included at Sl No 19 in the negative list of annexure-I of the said notification and hence the exemption was not admissible on the product 'laminated wrapper paper' to the appellant." 4.5 We also find that the original authority has rejected the contention of the appellant by stating as follows: "I observe that as the classification of a product manufactured and cleared very earlier cannot be changed now in absence of the product of that time and classification as mentioned in returns are the actual classification of the products cleared by the party hence the Circulars cited by the noticee has no relevance at this juncture." 4.6 The observations made by the original authority and Commissioner (Appeal) which run contrary to the observations of the ....
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....tes the name of the of supplier as "Century Pulp and Paper", name of product as "copier paper", further there is marking on the wrapper "COPIER MACHINE FRIENDLY". From these marking and other indications on the laminated paper cleared by the appellant it is quite evident that the product is cleared for wrapping of the photocopying paper. That being so it will be have to be as per the test laid down by the Hon'ble Supreme Court in above decisions the classification needs to be determined by treating the paper cleared as wrapping paper only. Sample of the product in dispute is reproduced below : 4.9 Board Circular 42/90 dated 23.10.1990 reads as follows : "3. The matter has been discussed in the East-Zone-Tariff-cum-General Conference held at Shillong on 25th and 26th April, 1990. The Conference took the view that printed wrappers cut to size or shape, basically for wrapping products, can not be considered as products of printing industry. The view that printed wrappers in addition to providing protection to the wrapped article also provide identity, sales appeal, advertisement and information so that printing becomes essential and thus goods merit classification under Chapter 49 ....
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....t the product cleared by the appellant is not cut to size and shape and hence not classifiable under this heading. We do not find any merits in the said observation as the he has failed to notice that the preceding three dash entry do not specify any such condition and preceding single dash entry is "other" thus the requirement of cut to shape and size as stated in 4823, would be applicable to the goods classifiable in all the headings prior to 4823.90 and not to the entries falling under this heading and subheading in this category. 4.12 W also find that the entry 48239013 is specifically made by expansion of the entries 482390 to eight digit and specifically covers the printing and wrapping paper. We do not find any merits in the order classifying the wrapping paper manufactured and cleared by the appellant in any other entry, as that is contrary to the principles laid down under General Rules of interpretation of Tariff stating as follows: "6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understan....