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TMI BlogForwarding of Supreme Court Order dated 26-9-2005 in Civil appeal No. 5242/2000X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember 26, 2005 Appearing Advocates : For the Appellant : M.H. Patel, Shri Narain and Sandeep Narain, Advocates for M/s. S. Narain & Co. Advocates For the Respondents : K. Swami and P. Parmeswaran, Advocates Dishonest assessee Vs negligent department - SC is not happy with both JUDGEMENT S. N. Variava, J : 1. This Appeal is against the Judgment dated 11th July, 2000 passed by the Customs, Excise & Gold (Control) Appellate Tribunal (for short CEGAT). 2. Briefly stated the facts are as follows: The Appellants manufacture a product which consists of aluminum foil, whose thickness does not exceed 0.2 mm, which is then covered on one side with a polyester film and on the other side with polyethylene. The Appellants also manufacture p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th paper, paperboard, plastics or similar backing materials) of a thickness (excluding any backing) not exceeding 0.2 mm. 76.12 Aluminium casks, drums, cans, boxes and similar containers (including rigid or collapsible tubular containers), for any material (other than compressed or liquefied gas), of a capacity not exceeding 300L, whether or not lined or heat-insulated, but not fitted with mechanical or thermal equipment. 39.20 Other plates, sheets, film, foil and strip, of plastic, non-cellular, whether lacquered or metalised or laminated, supported or similarly combined with other materials or not xxx xxx xxx 39.20.38 - Flexible, laminated 39.23 Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the essential characteristics of articles of plastic. The test reports show that the concerned products retain the characteristics of plastic. Therefore on merits also we find that the view taken by the lower authorities is the correct view. 5. It was however submitted that subsequent to the impugned Judgment, in a number of other matters, the Tribunal has taken a contrary view. It was submitted that in one of the matters, this Court has refused to interfere. In this behalf, reliance was placed upon the Judgment of the Tribunal in the case of CCE, Delhi-II vs. R.T. Packaging Ltd. reported in 2002 (51) RLT 291, wherein the Tribunal relying on the Judgments of the Tribunal in the case of Aluminium Co. vs. Commissioner of Central Excise repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned Judgment, though it may have been a ground for not interfering with a Judgment which had followed India Foils Ltd's case. 8. We find on a reading of India Foils Ltd's case that it is based upon decisions of the Tribunal in the cases of Hindustan Packaging Co. Ltd. vs. CCE, Vadodara reported in 1995 (75) ELT 313 (by a larger Bench of the Tribunal) and India Foils Ltd. Vs. CCE, Calcutta II reported in 1998 (99) ELT 101. We, however, find that in Hindustan Packaging Co. Ltd.'s the question was whether the product was covered by the Tariff Heading 76.06 or 48.11.29. Chapter Note (I)(viii) of Chapter 48 provided that metal foil backed with paper or paperboard was not covered by Chapter 48. There is no such note in Chapter 39. In any even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39.20. Instead of pointing out this, they rely upon R.T. Packinging Ltd.'s case. This conduct has to be deprecated in no uncertain terms. In any case, this Judgment is only rendered on 7th July, 2005. Mr. Swami states that the Department is filing an Appeal against this Judgment. It must be mentioned that the Department was represented before the Tribunal. The Department has again been negligent in not pointing out to the Tribunal that in the Appellants' own case and for this very period, it has already been held by the Tribunal that the product is classifiable under Tariff Heading 39.20.
11. For the above reasons, we see no reason to interfere. The Appeal stands dismissed. There will be no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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