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TMI Blog2013 (8) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... er /circular / notification or clarification. Goods in question are properly classifiable under heading 76.15 by following the earlier decision of the Tribunal in the case of Hindalco Industries [2008 (10) TMI 179 - CESTAT, AHMEDABAD]. - Decided in favor of assessee. - 1377-1379/2009 and E/2419/2010 - A/FO/55448-55451/2013-EX(BR) - Dated:- 5-2-2013 - Archana Wadhwa And Sahab Singh, JJ. For the Appellant : Shri B L Narasimhan, Adv. For the Respondent : Ms Ranjana Jha, Jt. CDR Per: Archana Wadhwa All four appeals are being disposed of by a common order as they arise out of same impugned order passed by Commissioner confirming demands and imposing penalties on various appellants. 2. After hearing both sides, we find that the dispute in the present appeal relates to the correct classification of the disposable aluminum foil casserole tray dish manufactured by SR Foils Ltd. Whereas the appellants have claimed the classification under heading 76.15 of the Central Excise tariff and cleared the goods under the exemption notification, revenue's contention is that goods in question are properly classifiable under heading 76.12. Accordingly the Commissioner has confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to customers. In view of this the product 'aluminum containers' clearly fulfills the criteria of the Chapter heading 76.12 of the said act. As regards the appellants contention that the goods are classifiable under heading 76.15, she submits that explanatory notes 73.23 of HSN has been made applicable to 76.15 , which explains as under:- "This group comprise a wide range of irons or steels articles, not more specifically covered by other headings of the Nomenclature, used for table Kitchen or other household purposes; it include the same goods for use in hotels, restaurants, boarding houses, hospitals, canteens, barracks, etc."........ 1. Articles for kitchen use such as saucepans, steamers, pressure cookers, preserving pans, stew pans, casseroles, fish kettles, basins frying pans, roasting or backing dishes and plates, grid irons, ovens............ 2. Articles for tables use such as trays, plates, soups or vegetables, dishes, sauce tureens, sugar basins, butter dishes, milk or cream jugs; hors-d' oeuvres dishes, coffee pots and percolators........ 3. Other households articles such as wash coppers and boilers, dustbins, buckets, coal scuttles and hoods, wate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may please be considered now before taking view in the matter. This decision is under appeal in the Supreme Court and is pending decision there. 6. We have appreciated the submissions made by both sides. We find that the goods in question are aluminum foil casseroles / trays / backing dish, etc. which are used for preparing food packages for pantries of Railways or airlines and the same are used for supply of meals in train or at site units etc. The two disputed entries in the present case are 76.12 as claimed by the Revenue and 76.15 as claimed by the assessee. The entry as against 76.15 relates to table, kitchen or other household articles and parts thereof, of aluminum, whereas the entries against 76.12 includes aluminum casks, drums, can, boxes and similarly containers. The revenue's contention is that inasmuch as the aluminum foil casks are essentially containers used for packing of food, the same would be properly classifiable under 76.12. 7. We find that the Tribunal in the case of Hindalco Industries Ltd. vs. CCE, Vapi [2009 (237) ELT 588 (Tri-Ahmd)] has passed a detailed order holding in favour of the assessee. For arriving at conclusion that such goods fall under hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had gone before the Hon'ble Supreme Court of South Africa and the Hon'ble Supreme Court ruled in favour of the Revenue' and thereafter based on the submissions made by South African customs, Harmonized System Committee recommendations also fully support the appellant. The decision of the Hon'ble Supreme Court cited by the appellant shows that the judgment of foreign Court has to be considered where the basis is same. Further, several judgments cited by the appellant also show that the opinion of the Harmonised Systems Committee has to be considered. We also agree with the learned advocate's arguments that the explanatory note given on the Chapter 73 to cover the table-ware and kitchen-ware have to be considered and therefore, the product manufactured by the appellant is correctly classifiable under Heading 76.15 as claimed by the appellant. As regards contentions of the learned SDR that the product is classifiable as container, the recommendations of Harmonised System Committee ad the decision of the Hon'ble Supreme Court of South Africa and the HSN note regarding the table-ware and kitchen-ware clearly are against the Revenue. It is also not disputed that primary use of the prod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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