2005 (9) TMI 81

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.... Appellants also manufacture pouches out of the same material. The question for consideration is as to whether these products are classifiable under Tariff Heading 76.07 and 76.12, as claimed by the Appellants, or under Tariff Heading 39.20.38 and 39.23.90, as claimed by the Respondent. All the authorities below, including the Tribunal in the impugned Judgment, have held against the Appellants. The Commissioner (Appeals) and the Tribunal have based their decisions upon test reports which show that plastic predominates over the aluminium foil accounting for 2/3rd of the total weight. Reliance has also been placed on HSN Explanatory Notes. The findings being based on facts and the Tribunal being the final authority on facts, this Court cannot....

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....ted 39.23 Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other Closures, of plastics   xxx      xxx      xxx 39.23.90 - Other". Tariff Heading 39 is thus the specific heading which covers such products. This entry covers plates, sheets, film, foil and strip of plastics, non-cellular, whether lacquered or metalised or laminated. From the test reports, it is clear that plastic predominates in the product. 70-80% of the product consists of plastic. There is no denial of this fact. Tariff Entry 76.07 only deals with aluminium foils which are backed with paper, paperboard, plastic or similar other backing material. In this case, the product is n....

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....ging Ltd. reported in 2002 (51) RLT 291, wherein the Tribunal relying on the Judgments of the Tribunal in the case of Aluminium Co. v. Commissioner of Central Excise reported in 2001 (133) E.L.T. 759 and Commissioner of Central Excise, Calcutta v. India Foil Limited reported in 2001 (132) E.L.T. 737 held that such products are classifiable under Chapter Heading 76.07.60 and not under Chapter Heading 39.20. It was pointed out that, on 20th February, 2003, this Court dismissed Civil Appeal No. 5148 of 2002 filed by the Department on the following ground : "Since the Revenue has accepted the judgment of the Customs, Excise and Gold (Control) Appellate Tribunal in Commissioner of Central Excise, Calcutta v. Indian Foil Limited [2001 (132) E.L.....

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....1.29. Chapter Note (I)(viii) of Chapter 48 provided that metal foil backed with paper or paperboard was not covered by Chapter 48. There is no such note in Chapter 39. In any event what the Tribunal seems to have missed in Hindustan Packaging Co. Ltd.'s case is that the Chapter 76 cannot apply to a product which is covered on both sides with other products. For Tariff Heading 76.06 to apply the aluminium foil must be backed with paper, paperboard, plastic or other similar backing material. That would necessarily mean that the aluminium strip is lined only on one side. Even otherwise a Judgment dealing with a question whether Tariff Heading 76.06 or Tariff Heading 48.11.29 applied would have no bearing when considering a question as to wheth....