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TMI Blog1984 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... s these containers were not printed boxes or printed cartons. The Central Excise Officers approved the classification list and allowed the clearances of the goods without payment of duty. However, after the issue of the Trade Notice No. 175/82 dated 20-8-1982 based on the Tariff Advice No. 45/82, the Superintendent of Central Excise, Virudhunagar issued a show cause notice on 6-10-1982 calling upon the appellants to show cause why duty should not be demanded on these containers as they were made out of mill board, straw boards, kraft paper and metal components and, therefore, according to him were classifiable under Item 68 as composite articles. A demand for ₹ 4,67,645.18 in respect of the clearances made. 3. In their reply to the show cause notice, the appellants submitted that the department could not deny the classification of the goods in dispute under Tariff Item No. 17(4) C.E.T. on the ground that the Vim Containers and Defence Containers were made out of the kraft paper and eligible for classification under Item 17(4) C.E.T. and hence entitled to exemption under Notification Nos. 66/82 and 144/82. These containers were simple containers with aluminum foil pasted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial officer, the Superintendent or the Assistant Collector of Central Excise should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by their superiors. According to him, the Tariff Advice is dated 9-9-1982 and the show cause notice was issued on the basis of this Tariff Advice on 10-10-1982 and as such it cannot be said to be a legal show cause notice. 7. The other submission made by Shri Daya Sagar is that the Defence Containers and Vim Containers, the classification of which is under consideration were rightly classified under the residuary general excise Item 68 till sub-item (4) was introduced in Item 17 bringing within the scope of Tariff Item 17, Boxes, cartons, packets etc. Such boxes, cartons etc. prior to 28-2-1982 were classifiable under Item 68 but after 28-2-1982 they were brought under this specific Item 17 and since that date they are classifiable under this Item with exemption allowed under Notification No. 66/82. According to him, in fact the classification list claiming assessment under Item 17(4) C.E.T. present Item 17(3) with exemption under Notification No. 66/82 was approved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the classification of this product from Item 17(4) to 68 C.E.T. without any cogent reason and, therefore, this order of the Assistant Collector of Central Excise cannot be said to be legal. 10. Shri Daya Sagar, Consultant further submitted that the appellants have been discriminated by changing the classification of these articles manufactured by them without any cogent reason and denying them the benefit of exemption Notification No. 66/82, whereas other manufacturers of these very articles in other regions continued to enjoy the benefit of this notification. He drew our attention towards a letter written by the Ministry of Defence to whom the Defence Containers were being supplied by various parties, in support of his contention that the other suppliers of these articles were not charging the excise duty on the Defence Containers inasmuch as they were exempt under Notification No. 66/82. 11. The last submission made by Shri Daya Sagar is that nowhere it has been mentioned in the exemption Notification No. 66/82 that the articles should be completely of paper to get the benefit of exemption under this notification. Defence Containers and Vim Containers are mostly made of k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A persual of show cause notice dated 6-10-1982 shows that it was issued by the Superintendent of Central Excise, VirudhuNagar, on the basis of the invoices mentioned by the appellants in their letter No. SO/CEX/9514 dated 17-9-1982. The show cause notice does not talk of this Tariff Advice at all. There is nothing on record to show and prove that any administrative authority has influenced the decision of the judicial or quasi-judicial authority. Mere issuance of Tariff or Trade Advice prior to the issuance of the show cause notice is not sufficient to hold that the show cause notice is illegal. It has been observed by the Division Bench of Delhi High Court in Civil Writ No. 3980/82 M/s. Orient Ceramics Industries Limited v. Union of India and Others as under :- It cannot be said as a matter of law that the Board is not entitled to issue Tariff or Trade Advice. These may also be followed in some cases by subordinate assessing authorities. If the assessment or classification is not acceptable to the manufacturer, he has a right of appeal. With regard to an Act, like the Excise Act with all India application and thousands and thousands of manufacturers being concerned it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer has inherent powers under Section 11A of the Central Excises and Salt Act, 1944 to issue a demand notice where he discovers the earlier assessment was erroneous subject to the limitation of time as stipulated thereunder. The Department has followed the procedure as laid down under the Central Excises and Salt Act, 1944 and issued the show cause notice demanding the difference in duty for the period April, 1982 to August, 1982. 16. The only question which requires determination is whether these containers known as Vim Containers and Defence Containers are to be classified under sub-item (4) of Item 17 C.E.T. or under Item 68 C.E.T. Sub-item (4) of the Item 17 which was applicable at the relevant time reads as under :- 17. Paper and Paper Board, all sorts (including pasteboard, mill board, straw board, card board and corrugated board) and Articles thereof specified below in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power :- (4) Boxes, cartons, bags and other packing containers (including flattened or folded boxes and flattened or folded cartons), whether or not printed and whether in assembled or unassembled condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iners cannot come into existence and, therefore, paper/board is only one of the raw materials and the other material components like lids and bottoms and printed aluminium foils are the other important materials and, under these circumstances, it cannot be said that the paper/paper board gives the essential character of the product in question. Besides this, the principle of essential character of an article for classifying the same under Customs Tariff has no application in Excise Tariff classification. In the Excise Tariff classification, the words mentioned in the tariff itself must be given their natural and popular meaning. Tariff Item 17(4) speaks of articles made of paper and paper board. This evidently suggest articles made of paper with all essential parts of the same material. Thus, there are boxes, cartons etc. for shoes, cigarettes, sweet meats and a host of other goods made of paper/board in all essential parts. At most, they may have metal staples to hold the corners i.e. for reinforcement, but these articles i.e. Vim Containers and Defence Containers cannot be said to be the articles of paper or paper board. These are composite containers made of paper, paper board a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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