9911796707
TMI Blog1993 (5) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 dated 22-3-1986 classifying their product under sub-heading 4818.90, showing rate of duty at 12% Adv. This Classification List is said to be filed as per the direction given by the Range Superintendent. This subsequent Classification List was accordingly approved by the Assistant Collector on 9-4-1986. Against that Order of the Assistant Collector dated 9-4-1986, the appellants filed their appeal before the Collector of Central Excise (Appeals), Bombay. It was argued before him that their above said products are containers and are, therefore, covered by sub-heading 4818.19 and not under sub-heading 4818.90, as according to the appellants it covers articles of paper not covered by the earlier sub-headings of Heading 48.18. Reference was also made to the Telex message F. No. 61/11/86-CX. 2(Pt) dated 8-1-1987 said to have been issued by the Board. However, the Collector of Central Excise (Appeals), Bombay, modified the Order of the Assistant Collector dated 9-4-1986 impugned before him, as follows :- 5. I have carefully gone through the case records, the appellants submissions in their appeal petition and those made at the time of personal hearing. As per the Ministry s Telex F. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that reel core is classifiable under Tariff Item 4818.90 and not under Item 4812.12 as the reel core cannot be held to be container. It was highlighted by her that while holding so, the Tribunal relied upon the judgment rendered by the Apex Court in the case of G. Claridge Company Ltd. v. Collector of Central Excise, 1991 (52) E.L.T. 341, wherein while interpreting the scope of sub-heading 4818.19 and sub-heading 4818.90 (which are the subject matter in the present appeal) and the erstwhile Item 17(3) or 17(4) it was held that Egg trays. Egg filler flats, Egg cartons, tube light packing trays, apple trays and other similar products are not containers within the meaning of sub-heading 4818.19. These are articles of pulp falling under sub-heading 4818.90. Similarly, prior to 28-2-1986 they were not classifiable under Tariff Item 17(3) or 17(4) of the erstwhile Central Excise Tariff. As regards the said Telex tariff advice dated 8-1-1987 issued by the Central Board of Excise and Customs, she submitted that such advices are wholly irrelevant for the purpose of classification of the product under Central Excise Tariff as they cannot over-write the true meaning or construction un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument as to applicability of Section 41(2) was not open to the Revenue. (iv) Mohinder Singh Gill v. The Chief Election Commissioner, AIR (6) 1978 SC 851, wherein it was held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. (v) Collector of 24 Parganas v. Lalith Mohan Mullick, AIR 1988 SC 2121, wherein it was held that new grounds raised for the first time in Review Petition cannot be considered apart from fact that it would involve investigation of new facts. (vi) Bush (India) Ltd. v. Union of India, 1980 E.L.T. 258, wherein the Bombay High Court held that it is not open to Central Excise authority to urge in its affidavit-in-reply a ground not taken in the order sought to be impugned and thereby seek to make out a new case in justification of the impugned order. (vii) Dunlop Rubber Co. (India) Ltd. v. M. V. Raghwan Iyer and Others, 1983 (14) E.L.T. 2289, wherein the Bombay High Court held that it is well settled law that the validity of an impugned Order must be judged by the reasons given in the order itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved the fresh Classification List filed by the appellants showing the subject products under sub-heading 4818.90 on 9-4-1986, but on appeal the Collector of Central Excise (Appeals), Bombay, without applying his mind and blindly following the Ministry s Telex message F. No. 61/11/86-CX. 2 (Pt) dated 8-1-1987 ordered for the classification of the subject products under sub-heading 4818.19 w.e.f. 8-1-1987 and further holding that for the period prior to 8-1-1987 the same were classifiable and assessable to duty under sub-heading 4818.90. It is in this background that the contention of the appellants as to whether the Collector (Appeals) erred in applying the said Telex advice from its date or should have been given retrospective effect, that is to say, from 1-3-1986 - the date of the Classification List is to be considered and for this purpose we have to consider, as to whether the Classification of the subject products done under heading 4818.19 w.e.f. 8-1-1987 is also to be considered. For, if it is ultimately held that the subject products fall under heading 4818.90 even prior to 8-1-1987 the said question as to whether the Collector (Appeals) erred in applying the said Telex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paints Ltd., Howrah, 1987 (29) E.L.T. 1001, (ix) Roots Auto Products (P.) Ltd. v. Collector of Customs, 1988 (38) E.L.T. 310, (x) Griffon Laboratories Pvt. Ltd. v. Collector of Customs, 1989 (41) E.L.T. 613, and (xi) J.K. Synthetics Ltd. v. Collector of Customs, 1992 (62) E.L.T. 41. 7. It is true that the Revenue, who is the respondent herein, has not filed any appeal or cross-objection against that part of the Order of the Collector (Appeals) wherein he has held that, the subject products were classifiable under sub-heading 4818.19 w.e.f. 8-1-1987 but this fact by itself should not prevent the respondents from raising the question of correct Classification. Disputes on classification matters are not in the nature of disputes between two individuals if affecting their respective rights in their particular action. A decision on a classification dispute rendered solely on the basis of the grounds urged before the lower authorities, shutting out any new ground(s) even if that ground(s) has (have) relevance to a proper and correct determination of the dispute, could, in our view, conceivably lead in some cases to a less than proper or correct or even a wrong determination. Thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the only rider is that the party who may be affected thereby should have a sufficient opportunity of being heard on that ground(s). In the case of Commissioner of Income Tax, Madras v. Mahalakshmi Textiles Mills Ltd., (1967) 3 SCR 957, the Apex Court held as follows :- By the first question the jurisdiction of the Tribunal to allow a plea inconsistent with the plea raised before the departmental authorities is convassed. Under sub-section (4) of Section 33 of the Indian Income-tax Act, 1992, the Appellate Tribunal is competent to pass such orders on the appeal as it thinks fit . There is nothing in the Income-tax Act which restricts the Tribunal - to the determination of questions raised before the departmental authorities. All questions whether of law or of fact which relate to the assessment of the assessee may be raised before the Tribunal. If for reasons recorded by the departmental authorities in rejecting a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the departmental authorities and the Tribunal, and indeed they would be under a duty to grant that relief. The right of the assessee to relief is not restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the authorities below to its earlier letter F. No. 202/74/79-CX. 6 dated 24-10-1979 regarding the scope and effect of Tariff advices for implemental action stating that the quasi-judicial authorities are free to differ with the Tariff advice, the trade notice/advices are essentially meant for administrative guidance and these are generally issued for the guidance of the officers of the Department. Such Tariff advices cannot be said to constitute an authority to bind and regulate any decision on the point of classification. Therefore, the same cannot operate retrospectively. 10. As regards the question of classification of the subject goods it may be stated that this Tribunal after considering the Heading 48.18 and its sub-headings including 4812.12 and 4818.90 and the decision rendered by the Apex Court in the case of G. Claridge Company Ltd. v. Collector of Central Excise, 1991 (52) E.L.T. 341 wherein it was held that egg trays, egg filler flats, egg cartons, tube light packing trays, apple trays and other similar products are not containers falling under sub-heading 4818.19 but are classifiable as articles of pulp under sub-heading 4818.90 of the Central Excise Tariff an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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