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TMI Blog2015 (1) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2403 10 39 instead of sub-heading No. 2403 10 31. It has not been an issue for determination whether labelling, re-labelling, re-packing from bulk pack, etc. resulted into ‘manufacture’ under Chapter Note 3 of Chapter 24 of CETA, 1985. On the contrary, we find that the circumstances involved in the present case are squarely covered by the judgment of this Tribunal in the case of Hindustan Biri Manufacturing Company’s case (2007 (3) TMI 106 - CESTAT, KOLKATA), wherein it has been categorically held that the biri is not manufactured with the aid of power by use of machine for the sole purpose of packing of biris in pre-printed plastic wrapper brought from outside. In the result, there is no merit in the Orders-in-Appeal. Consequently, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Demand Notices dated 25-2-2009 27-3-2009 were issued alleging that the Super Kishan Biri No. 51 being manufactured with the aid machine, accordingly, classifiable under Chapter sub-heading 2403 10 39 of CETA, 1985. It is also alleged that on account of such mis-classification, there had been short payment of duty of ₹ 3,45,999/- for the period from August, 2008 to October, 2008 ₹ 3,21,319/- for the period Nov. 2008 to Dec., 2008. The Adjudicating Authority after considering the replies to the show cause notices and report by the Assistant Commissioner of Central Excise, Malda Division dated 4-9-2008, dropped the demand against the Appellants observing that the product manufactured by the Appellants is classifiable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioning that there was packing of biris in the factory with the aid of machines. It is his submission that the grounds of appeal and the impugned order of the ld. Commissioner (Appeals) are contradictory, hence, the Order of the ld. Commissioner (Appeals) is bad in law. 3.2 Further, he has submitted that Packing is not covered under Note 3 of Chapter 24 of CETA, 1985, either before its amendment or after its amendment w.e.f. 1-3-2008. Therefore, reference to Chapter Note 3 is irrelevant to the facts in issue. Hence, the ld. Commissioner (Appeals) ought not have relied upon the said Chapter Note 3 in deciding the Appeal. The ld. Consultant, further, submitted that the issue raised by the Department in the present case is covered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1985 and hence, not applicable to the facts of the present case. 5. Heard both sides and perused the records. We find that the limited issue involved in the present Appeal, relates to determination of the fact whether there is short payment of duty on account of mis-classification of Super Kishan Biri No. 51 , chargeable to specific rate of duty. The competing entry for classification of the said product is sub-heading No. 2403 10 31 sub-heading No. 2403 10 39. The Applicant claimed classification under sub-heading No. 2403 10 31 and Revenue proposed its classification under sub-heading No. 2403 10 39. For better appreciation, the said Entries are reproduced below : Tariff Item Description of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Packing of toasted biri bundles in pre-printed wrappers (purchased from outside) with the aid of machine operated by power to make it as pouch or sachet; 7. Twenty (20) pouch or sacket placed in a packet and packed manually to make it larger packet; 8. Finally fourty eight (48) large packets kept in a cartoon, which is ready for dispatch. 7. He has reported that before making the product marketable and saleable, machine is involved only at stage No. Six (6) mentioned above and opined that as per CESTAT s Order No. A-156/Kol/2008, dated 23-1-2008, the product is classifiable under Tariff sub-heading No. 2403 10 31. On the basis of the said report, the adjudicating authority, has classified the product under sub-he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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