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TMI Blog1994 (8) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... han submitted that after the application had been filed by the applicants on their own, another more comprehensive application prepared by him was also filed since even on the second point arising for consideration in the case i.e. whether the imported goods were eligible for the benefit of lower duty of 35% ad valorem in terms of Notification No. 231/88-Cus., dated 1-3-1988, the Tribunal had not given its finding on a number of points which were raised by him during the hearing of the appeal. Shri Narasimhan, therefore, pleaded that for these reasons Application No. C/ROM/14/94-C may be permitted to be withdrawn and he may be permitted to make his submissions on the second application bearing No. C/Misc./355/94-C. The Bench while reserving the decision on the prayer for the withdrawal of C/ROM/14/94-C and the question of maintainability of the second application directed Shri Narasimhan to make his submissions on Application No. C/Misc/355/94-C. 2. Making his submissions on the Application No. C/Misc/355/94-C, Shri Narasimhan stated that during the hearing of the appeal he had drawn the attention of the Bench to Misc. application dated 17-5-1993 for carrying out amendment to gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions Shri Narsimhan submitted that there are obvious omissions in summing up of a number of submissions that were made by him in support of the appellants claim for the benefit of lower basic duty of customs @ 35% ad valorem in terms of Notification No. 231/88-Cus., dated 1-8-1988 do not find any mention in para 2 of the Tribunal s order. The order sums up the other submissions on behalf of the appellants but these points have also not been dealt with in the order. In this regard he stated that the meaning of the expression Printing Industry was required to be determined in common or trade parlance on the basis of the test laid down by the Supreme Court in the case of Dunlop India v. UOI reported in 1983 (13) E.L.T. 1566 (SC) and Porritts and Spencers (Asia) Ltd. v. State of Haryana - 1983 (13) E.L.T. 1607. He added that in this regard he had also submitted that the Collector (Appeals) had erred in restricting the scope of printing industry only to the activities such as printing of books, news papers, magazines etc. since the scope of the entry other products of the printing industry in Chapter 49 - Heading 49.01" would inter alia include HDPE woven sacks when printed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atio apparent in the aforesaid judgment is that the term printing industry cannot bring within its scope printing of textile fabric which is part of the textile industry . He stated that he had on the other hand relied upon the judgment of the M.P. High Court in the case of Raj Packwell Ltd. v. Union of India which has not been considered by the Tribunal. 5. Shri Narsimhan contended that the impugned Order No. 335/93-C, dated 29-10-1993 has rightly summarised in para 4, the two questions which were required to be examined but the order failed to decide the question (ii) having regard to submissions made on behalf of both sides and in the context of ground, (xi) of the memorandum of appeal which was sought to be substituted in the course of the hearing. He argued that the rejection of the appeal in toto was therefore, an error apparent from the records which required rectification. He contended that the errors apparent from the records as pleaded by him in relation to the two questions which were to be decided in the appeal go to the root of the matter. He therefore, prayed that the order passed by the Tribunal may be recalled and the case may be re-heard. In support of his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the submissions made on behalf of both sides. The applicants had filed the Application No. C/ROM/14/94-C under sub-section (2) of Section 129B of the Customs Act, 1962 for rectification of certain errors which were claimed to be apparent on the face of the record. However, before the application could be taken up for hearing, the applicants filed another application bearing No. C/Misc./355/94-C for rectification and prayed that the earlier Application No. C/ROM/14/94-C may be dismissed as withdrawn. It has been contended that after filing the first application the applicants realised that there were certain other errors apparent on the basis of the record in the Tribunal s Final Order No. 335/93-C, dated 29-10-1993 which had not been taken into account in the application for rectification filed by them, they filed another more comprehensive application listing out all the mistakes apparent on the record in the said order passed by the Tribunal required to be rectified. The learned JDR has contended that the second application for rectification No. C/Misc/355/94-C would not be maintainable if the earlier application C/ROM/14/94-C is dismissed as withdrawn in view of the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue on which rectification was needed went to the root of the matter. In our view the errors apparent from the face of the record in the order passed by us as listed above, do not go to the root of the matter necessitating the recalling of the order for re-hearing the appeal. For these reasons, we order the rectification of the order in question in the following manner :- (i) Delete para 2 of the final order and insert the following para 2 in the final order :- New para 2 : On behalf of the appellants Shri K. Narasimhan, the learned advocate appeared before us. He stated that the Collector (Appeals) had decided the matter on the basis of the definitions of words Printing and Printer in the Chambers Dictionary. He added that the Collector (Appeals) had ignored the fact that the DGTD certificate dated 23-5-1989 produced by the appellants clearly indicated that they have a separate printing unit or section in their factory where they have installed printing machine for printing HDPE/PP Woven Sacks as per buyer s requirements. He contended that since the appellants were carrying out the activity of printing of manufactured HDPE/PP Woven Sacks according to the design and spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n quantity of colouring agent to any surface - which would include even plastic surface. He submitted that the claim that HDPE Woven Sacks when printed with Motif characters or Pictorial representation would be classifiable only under Tariff Heading 49.01 as product of Printing Industry was also in line with the broad guidelines given in the decision of the Tribunal in the case of Collector of Customs v. Garden Silk Mills reported in 1993 (65) E.L.T. 251. In support of his contention regarding the scope of Heading 49.01 of the revised tariff and the meaning of the phrase `Printing he cited the following case law :- (i) Elgi Polytech Ltd v. CCE - 1988 (34) E.L.T. 404, (ii) Meteor Satellite v. CCE - 1990 (45) E.L.T. 697, (iii) Bombay Chemicals (P) Ltd. v. CCE - 1990 (40) E.L.T. 431, (iv) Raj Packwell Ltd. v. UOI - 1990 (50) E.L.T. 201 (M.P.), (v) Metagraph (P) Ltd. v. CCE - 1986 (26) E.L.T. 66 (ii) After para 4 add the following new para 5 and re-number the existing para 5 on pages 5 to 7 of the final order as para 6 : New para 5 In support of the claim that the imported Nyloflex Photopolymer Relief Image Printing Plates were eligible for concessional rate of basic c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Customs v. Garden Silk Mills (supra) and have contended that the broad guidelines given in the said decision support their case. At the same time they have referred to the judgment of the Supreme Court in the case of Dunlop India v. UOI, reported in 1983 (13) E.L.T. 1566 and have contended that meaning of the expression Printing Industry in the Notification No. 231/88-Cus., dated 1-8-1988 has to be decided on the basis of the common parlance test. Though the appellants have claimed that the decision of the Tribunal in the case of Collector of Customs v. Garden Silk Mills supports their case, we find that no such inference can be drawn from the said decision since in that case the Tribunal going by the common parlance test observed that different sectors of the industry acquired a name depending upon the name of the product that is produced in that sector and the proper nomenclature of the sector is based on the history of the product which has been manufactured in a particular sector. On these considerations the Tribunal observed that printing of textiles was the part of textile manufacturing unit as in the trade the printing of textiles is understood as a part of the text ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the benefit of exemption of auxiliary duty in excess of 5% was also sought in terms of Notification No. 141/90-Cus., dated 30-3-1990. Under these circumstances we find that the Collector (Appeals) had rightly observed that there being no claim for refund of auxiliary duty in terms of Notification No. 141/90-Cus., dated 30-3-1990, there was no decision on that issue by the Asstt. Collector and on this ground, he rejected the appeal. We find no infirmity in the findings of the Collector (Appeals) since the claim for refund for auxiliary duty in terms of Notification No. 141/90-Cus., dated 30-3-1990 not having been filed by the appellants before the Asstt. Collector, their claim on this ground made for the first time before the Collector (Appeals) merited rejection as time barred. This view finds support from the Tribunal s decision in the case of Modi Rayon Silk Mills v. CCE, reported in 1987 (29) E.L.T. 933 wherein it has been held that the ground for claim not amendable from the date of the initial claim when it requires elaborate examination of new facts/material. (iv) Renumber the existing para 6 as para 8. The captioned Misc. Application and ROM Application are disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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