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TMI Blog1998 (9) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... for manufacture of paper cups in May 1989. Show cause notices were issued to the assessees for modifying the classification lists earlier approved, by changing the classification of the product from CET sub-heading 4823.90 to 4819.12 chargeable to duty @ 35%, as well as for vacating the protest. The Assistant Collector modified the classification lists earlier approved, holding that the printed paper cups fall for classification under sub-heading 4819.12, and held that the modification will be retrospective, on the ground that the assessees had not earlier furnished complete information regarding the manufacture of the printed paper cups. He also denied the benefit of Notification 67/82-C.E., dated 28-2-1982 on the ground that the assessees had availed of the benefit of Modvat credit. Subsequent classification lists were approved under CET sub-heading 4819.12. On appeal, the Collector (Appeals) upheld the classification of the printed paper cups and lids under CET sub-heading 4819.12, classification of unprinted cups along with lids under sub-heading 4819.19, and classification of other cups of paper/paper board supplied without lids, meant for serving ice creams, tea, coffee and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of Central Excise (Appeals) in his order dated 26-6-1992 (which has been followed by the Collector of Central Excise in his order dated 23-9-1992 so far as classification is concerned), has applied the ratio of the judgment of the Apex Court in the case of G. Claridge & Company Ltd. v. Collector of Central Excise, Pune reported in 1991 (52) E.L.T. 341 (S.C.) = 1991 (33) ECR 433 (S.C.) for coming to the conclusion that the paper cups, both printed and unprinted with lids, fall for classification under Heading 48.19 since they are to be considered as packing containers, in view of the fact the such paper cups are being extensively used by ice-creams, srikhand manufacturers, who sell the same in retail outlets as ready to serve in retail packs, and such cups are also used for transporting the product (whether ice-cream or srikhand) from the factory premises of the manufacturers to the retail outlets, including the vendors. The relevant extract from the judgment of the Apex Court is reproduced below : ₹ 11. The above definitions would show that the expression `container' is used in three different senses : in a broad sense, it means a receptacle which contains; in a na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper cups with lids under CET sub-heading 4819.12 and unprinted paper cups with lids under CET sub-heading 4819.19. The classification of other cups of paper/paper boards supplied without lids has also been correctly decided under CET sub-heading 4823.90. Accordingly, we uphold the finding on the classification of the 3 products in dispute. 5.3 Limitation : In the order assailed by the Revenue, the Collector of Central Excise (Appeals) has held that the demands are barred by limitation, while in the order of the Collector of Central Excise, assailed by the assessees, the adjudicating authority has departed from these findings recorded in the earlier order of the Collector of Central Excise (Appeals). We find that right from the beginning of their manufacturing activity, the assessees were filing declarations with the Department claiming exemption from licensing control, in which they have described the said products as known in trade parlance. These declarations were verified by the Superintendent from time to time by visits to the factories of the assessees. The Department had allotted code Nos. to the assessees so as to enable them to claim exemption, and so as to enable e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctober, 1988 to March, 1989 and the notice also stated that the manufacturing process had been examined by the Department. The assessees filed classification lists under protest, classifying the products manufactured by them under CET sub-heading 4823.90, as directed, under cover of letter dated 15-5-1989. In the classification list, the product was described as paper cup container for packing ice-creams, srikhand, etc. The assessees replied to the show cause notice dated 12-5-1989 on 6-6-1989; the Assistant Collector approved the classification list finally, classifying the products under CET sub-heading 4823.90 as proposed in the notice, and the order of approval became final in the absence of any challenge by the Department. In the meanwhile, in May 1989, the assessees applied for job work permission under Rule 57F(2) clearly mentioning that the laminated paper made out of base paper and LDPE granules will be sent directly to the processors, M/s. Shree Rama Lamination P. Ltd. and Shree Rama Packaging, who will send the laminated papers to printers for printing and thereafter receive it back. In the same letter, they also stated that some-times they will receive the raw materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been alleged. In view of the above, and noting that the classification lists had been filed under CET sub-heading 4823.90 as directed by the Department (as against the initial claim of the assessees for classification under CET sub-heading 4819.12 for printed paper cups and lids of paper/paper board it cannot be held that the assessee's claim for classification under CET sub-heading 4823.90 is deliberate with intention to pay nil rate of duty. Therefore, we are of the view that no suppression or misdeclaration with intent to evade payment can be attributed to the assessees so as to make applicable the extended period of limitation. Hence, we hold that the demands are barred by limitation. 6. Retrospective operation of revision of classification : The appeals filed by the Revenue are restricted to pleading that the findings of the Collector (Appeals) on time barred nature of the demands are required to be set aside, and hence we are not called upon to go into the question as to whether a demand can be raised only from the date of the show cause notice, even though the Assistant Collector is competent to review approved classification lists. 7. In the light of our abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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