9911796707
TMI Blog1987 (9) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... ended by Notification No. 122/75, dated 5-5-1975. In support of their plea, they relied on Order-in-Revision NO. 2057/77, passed by the Central Government acting as Revision Authority under the Central Excise Salt Act (hereinafter called the Act), in the case of M/s. Allibhoy Sharafally Co. Bombay, holding printed cartons manufactured by that party to be products of printing industry eligible for duty exemption under the aforesaid notification. The Assistant Collector, however, held that the goods were not eligible for the exemption claimed. In his order dated 20-3-1978, he observed that when printed paper boards move to the slitting and gumming stage, they do not remain any longer products of the printing Industry but passed on to the stage of products of the packaging industry. He also observed that printing in relation to cartons was only an incidental process in their manufacture and even without the printing operation, the cartons retained their identity and use as cartons. In appeal, tee Appellate Collector of Central Excise, Madras, by his order dated 5-12-1978 set aside the Assistant Collector s order on the basis that printed cartons were mainly meant for product display ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier case. By a detailed reply dated 22-5-1979, the assessee contested the notice. 4. The proceedings initiated by the above notice remained unconcluded and were, therefore, transferred to this Tribunal under Section 35P of the Act for disposal as if it were an appeal filed before the Tribunal. 5. Appeal No. 1350/81-D pertains to rejection by the lower authorities of the assessee s claims for refund of duty paid on printed cartons under Item No.68 CEF, the basic issue involved being same as in Appeal No. 858/83-D. 6. Since the two appeals presented a common Issue, they were heard together. Shri Ravinara Narain, Advocate, represented the assessee and Shri Vineet Kumar, Sr. D.R. the Collector. 7. The learned counsel for the assessee referred to, and relied upon, this Tribunal s Order No.173/1987-D, dated 4-3-1987 in the case of C.C.E., Bombay v. M/s. R.M.D.C. Press (P) Ltd., Bombay [1987 (29) E.L.T. 957 (Trib.)] wherein the view was expressed that printed cartons were products of printing industry within the meaning of Notification No. 55/75 and were, therefore, eligible for duly exemption under that notification. When, however, it was pointed out to the counsel, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection, the counsel pointed out that, even according to the show cause notice it was admitted that upto the stage of printing, the be a product of-the printing Industry. It is only at the later stages of slitting and gumming that the show cause notice seeks to put them as a product of the packaging industry. If, even according to the Government, upto the stage of printing the goods are to be considered as products of printing industry, the counsel urged, the process of slitting and gumming would not take them out of that category. The counsel further submitted in response to a query from the Bench that even if printed cartons were to be manufactured by a packager, they would never the less be products of the printing industry if they were not normally known as products of the packaging industry, but as products of the printing industry. 9. On the merits of the dispute, the learned Sr. D.R. submitted in response to the contentions put forth by Shri Ravindra Narain that the agreement Between the assessee and its clients were for the sale and purchase of printed cartons arid not boards, The assessee was not merely printing on plain boards according to the specifications of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cartons were included in the products of printing Industry. He also submitted that it would not be correct to say that a carton remained a carton even after printing, because it was not the carton that was subjected to printing but the plain board and it was the printed board that was made into a carton. 11. We have carefully considered the submissions before us. Our task has been rendered considerably lighter by the detailed and lucid examination of the merits of the dispute in the opinion recorded by the learned Member (Judicial) in the case of R.M.D.C. Press (P) Ltd. Bombay (supra). Briefly recapitulated, the position that emerges is as follows :- (i) As observed by both the Andhra Pradesh and Karnataka High Courts, the meaning of the expression products of printing industry will have to be found with reference to the trade understanding of the same in the absence of any statutory definition of the term. (ii) The conclusion as to trade understanding, as gathered from several publications such as - (a) The Printing Trade Directory" published by the Printing Trade Journal of the U.K. listing the addresses of a large number of printers engaged in carton making in the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following passage under the hearing First Carton Printing - The folding carton, now a major product of letter press printing, was launched by Quatar Oats, some time prior to 1886.... . 13. All these authorities establish the fact that printed cartons are products manufactured by printers and not by persons engaged in manufacture of plain cartons. Hence, printed cartons would be a product of printing industry rather than packaging industry. 14. As the learned counsel for the assessee has pointed out, the Andhra Pradesh High Court in its decision on the case of Golden Press (supra) has not ruled out the contention that printed cartons are products of printing industry as without basis. As pointed out by Member (Judicial) in his order in the R.M.D.C. Press case (supra), the High Court has held that the view that printed cartons are products of printing industry is as much plausible as the view that they are products of packaging industry. It is also to be noted that it was in view of its observation that The most that can be said in favour of the petitioner is, may be two views are possible", that the High Court perhaps did not deem it proper to interfere in the matter in exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed of as above. What remains to be seen is whether the assessee is entitled to refund of whole or part of the duties paid by it on printed cartons under item No.68 CET. Since we have already held that the subject goods are eligible for duty exemption in terms of Notification No.55/75, it only remains for us to see the other relevant facts and circumstances concerning this appeal. 21. Following the Order-in-appeal No.2006/78 dated 5.12.1978 passed by the Appellate Collector (the order impugned in Appeal No. 858/83), the assessee preferred a claim for refund of Rs. 11,20,558.17 being the excise duty paid by it on printed cartons manufactured and cleared by It during the period from March 1975 to September 1978; The Assistant Collector passed order dated 2.4.1979 in which he noted that Notification No. 122/75 which added the entry relating to products of the printing industry In Notification No.55/75 had been Issued only on 5.5.1975 and that, therefore, the said notification could take only prospective effect. Hence the refund claim for the period upto 4.5.1975 could not be entertained. We shall straightaway deal with this pan of the Assistant Collector s order which has been uphe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld the order passed by the Assistant Collector. However, he directed the Assistant Collector that as soon as review proceedings were over, he must take action to expeditiously finalise the refund claim in respect of the period for which the claim had been held by the Assistant Collector to be not barred by limitation. 25. Before us the learned counsel for the assessee contends that the show cause notice issued by the Government seeking to set aside the order-in-appeal No. 2006/78 dated 5.12.1978, not having raised the question of eligibility the Tribunal should not go into that question now. His contention is that the aspect of limitation was not gone into by the lower authorities and, therefore, not raised in the show cause notice. 26. We do not agree with the above contention. Firstly, the order-in-appeal No.2006/78 dated 5.12:1978 concerned itself with the question of eligibility of printed cartons to the benefit of Notification No.55/75. It did not deal with the question to refund of excise duty, though, no doubt, the Appellate Collector had stated in Ws order that he was allowing the appeal with consequential relief to the appellants. For determining what was the consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasion to advert to the implication of the expression consequential relief in one of the preceding paragraphs). By this letter, the assessee sought refund of Rs.11,20,558.77, the period covered being March 75 to September 78. This claim included the period covered by the claim letter dated 8.2.1978 also. 28. Shri Ravindra Narain submitted before us that payment of duty on printed cartons under Item No.68 GET was under a mistake of law as it transpired from the Central Government s decision in the case of M/s Allibhoy Sharaffally Co. (supra). Therefore, the limitation contained in Rule 11 of the Central Excise Rules would not apply but that under the General Law of Limitation. He also submitted that the consolidated refund claim dated 1.3.79 was one under Rule 11 (3) and that limitation under Rule 11 would not apply. Shri Vineet Kumar s reply to these submissions was that the claim for refund of excise duty was certainly subject to the limitation imposed under Rule 11. 29. We have carefully considered the submissions of both sides. Since the claim that printed cartons were eligible for benefit of duty exemption as products of printing Industry in terms of Notification No.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
