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TMI Blog1995 (3) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... 53/88-C.E., dated 1st March, 1988 and Entry No. 40 or Entry No. 40A. 2. Shri R. Santhanam, advocate for the appellant argued that these bags were specially manufactured for caprolactum manufactured by M/s. Fertilisers and Chemicals Limited, Travancore against a specific order. He said that caprolactum can be contaminated by exposure to moisture and hence the need for the inner layer of LDPE. Essential characteristic of the bag was, therefore, provided by the presence of LDPE bag and the laminated layer was subsidiary in this respect. He also argued that the Assistant Collector of Central Excise, Tuticorin, had in his order No. 31/92, dated 20th September, 1992 held that the multilayer bags manufactured by Maris Associates (P) Ltd., Tuticorin would be covered by S. No. 40 of Notification 53/88-C.E., dated 1st March, 1988. This order had been upheld by the Collector (Appeals) which had been accepted by the department since no appeal had been filed against that order. He further argued that the decisions of this Tribunal in (1) Amit Polymers Composites Ltd. v. CCE [1989 (39) E.L.T. 674] and (2) Eagle Flask Industries (Pvt.) Ltd. v. CCE [1991 (53) E.L.T. 65] have not been followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich gives the bag an essential characteristic. He did not substantiate his contention by citing technical literature. As it happens the Condensed Chemical Dictionary Ninth Edition (page 159) indicates packing of solid caprolactum flakes as 80-lb paper bags; 300-lb fiber drums . It has, therefore, to be concluded that while the purchasers of the bags may use them for transporting caprolactum, for their satisfaction, the presence of LDPE is not essential to transport caprolactum. 7. We are also not able to accept the contention raised by Shri Santhanam that the presence of the laminated layer is only subsidiary, in order to provide strength to the bags. From the sample of the bag produced, it is seen that the net weight of the content is 20 kgs. As agreed to by Shri Santhanam, a strong outer layer is necessary to ensure that the filled bag does not tear or leak during transportation and the rough handling that such transportation would inevitably entail. We cannot consider this to be a subsidiary feature of the bag. To ensure safe and trouble free transportation a strong bag is essential and such strength is provided by the outer layer. When this is considered with the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, it needs no emphasis that there should be uniformity in practice of matters such as this and it is hoped that the Board will take appropriate action. It is also not possible to accept the advocate s claim that the expression bags or sacks made out of fabrics ... from strips or tapes of plastics should be interpreted to include only those bags which are exclusively made of such fabrics. If that was the intention the entry would have to be incorporated with those words. 9. In the result, the appeal is rejected and the impugned order of the Collector (Appeals) is confirmed. Sd/- (Gowri Shankar) Member (T) 10. [Contra per : S.L. Peeran, Member (J)]. - I have gone through the order prepared by my learned brother but I could not persuade myself to agree with his findings, hence I am recording my separate order. 11. My learned brother has taken a view that the appellants have not substantiated their case, by citing any technical literature, in respect of their contention that the bags have been specially manufactured to transport caprolactum and for this purpose the LDPE is essential to keep out the moisture, and that it is the LDPE which gives the bag an essential ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President : Whether the appeal is required to be rejected as held by Hon ble M(T) or the appeal is required to be remanded to the original authorities for de novo consideration Sd/- (S.L. Peeran) Sd/- (Gowri Shankar) Member (J) 1-9-1995 Member (T) [Order per : Jyoti Balasundaram, Member (J)]. - The following difference of opinion has been referred to me for resolution : Whether the appeal is required to be rejected as held by Hon ble Member (T) or the appeal is required to be remanded to the original authorities for de novo consideration." 12. Shri R. Santhanam, learned Counsel for the appellants contends that the multilayer bags manufactured by the appellants are reinforced LDPE bags and not bags made out of fabrics, whether or not coated, covered or laminated with any other material woven from strips or tapes of plastics and hence entitled to the benefit of exemption in terms of Sl.No. 40 of Notification 53/88-C.E., dated 1-3-1988. He draws my attention to the paragraph 6 of the order recorded by the learned Member (Technical) in which it is set out that the appellants had not substantiated their contention regarding the essential characteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E which gives the bag its essential characteristics. He has also held that the bags are essentially made of laminated layer of HDPE and kraft reinforced by the other two inner layers of paper and LDPE. Therefore, it cannot be said that there is no evidence on record to determine as to what gives the bag its essential characteristics. The learned SDR is correct in contending that the burden lies upon the appellants to substantiate their claim to the benefit of an Exemption Notification and having failed to do so, they run the risk of their claim being rejected. The learned SDR is also correct in pointing out that nothing turned wrong on the gate passes issued by TPI India Ltd., Moradabad, as the learned Member (T) has held in paragraph 5 of his order, that the particular gate pass is not relevant. I agree with the learned Member (T) that the order of the Collector (Appeals) Trichy in the case of Maris Associates cannot bind the decision of this Tribunal which can independently interpret the concerned Notification. In the facts and circumstances of the case, I agree with the finding of the Member (Technical). The file is returned to the original Bench for further orders. Date ..... 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