ORDER
Archana Wadhwa, Member (J)
1. Vide order dt. 16.2.2006, referral Bench, after taking note of two divergent views in the Tribunal’s precedent decision as regards the classification of the printed wrappers for shaving blades, being manufactured by the appellant has referred the issue of classification of the said product to the Larger Bench. It has been noticed in the said referral order that in the appellants own case, Tribunal, vide its order No. 3422/97/WZB dt. 16.7.97, has held that the impugned goods are classifiable under Sub-heading 4823.90. However, in another decision in the case of Commissioner of Central Excise, Banglore v. Reliance Printers 2000 (122) E.L.T. 728 (Tribunal), the goods in question have been held to classifiable under Sub-heading 4901.90.
2. During the course of hearing our attention has been drawn to various decision of the Tribunal including the decision in the case of Web Impression (India) Pvt. Ltd. v. Commissioner of Central Excise, Calcutta-J 2002 (141) ELT 370 (Tri.-Kolkata) laying down as under. Para 2 & 3 is reproduced :
Shri K.K. Banerjee, Ld. Advocate res integra appearing for the appellants submits that the issue is no more re sintegra and has been decided by the South Zonal Bench in the case of Paxwell Printers v. CCE, Bangalore reported in 2000 (39) RLT 869. It has been held by the Tribunal that the printed Gay Wrapper is classifiable under Sub-heading 4901.90, by following another decision of the Tribunal in the case of Sri Kumar Agencies and Ors. . Shri Banerjee submits that the decision of the Tribunal in the case of J.E.H. Manufacturing Co. Ltd. holding printed wrapper for wrapping of soap cakes, chocolates etc. as falling under 4823.90 is distinguishable on facts inasmuch as in that case the subject-matter of dispute was wrapping paper, cut to size, for wrapping of individual soap cakes, chocolates etc. whereas in the present matter the product is not used for wrapping of individual cigarette but number of cigarette packets. The same is thus net cut to size and cannot be called as a wrapper for individual cigarette.
After considering the submissions made by Shri A.K. Mondal, Ld. JDR, we find that the appellants’ contention to be correct. The Tribunal in the case of Paxwell Printers has held that printed Gay Wrappers are classifiable under sub-heading 4901.90. As such, fallowing the ratio of the same, we set aside the impugned order by holding that the correct classification of Gay Wrapper is under sub-heading 4901.90. Appeal is thus disposed of in the above terms.
3. The said decision has been taken note of by the Bangalore Bench of the Tribunal in the case of VST Industries Ltd. v. Commissioner of Central Excise, Hyderabad . In para 6 of their judgement; it has been observed, by referring to the above decision of the Tribunal in the case of Web Impressions (I) Pvt. Ltd. that the same was challenged by Revenue in the Supreme Court, who upheld the Tribunal’s decision of classifying the goods as product of printing industry.
4. We also take note of the other decisions referred as Commissioner of Central Excise Bangalore v. Reliance Printers and Chapter Note XI of Chapter 48, which is to the effect that goods printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods fall under Chapter 49.
5. However, detail reading of the above decisions show that the issue of classification would depend upon as to whether the design or words printed are incidental or not to the primary use of goods, and depict the contents of the packet along with the other relevant information or as to whether the printed paper was actually cut to size so as to be held as a printed wrapper. From the impugned orders in the present case, we find that the said Tariff entry under Chapter 49 was never the subject matter of dispute before the authorities below. In fact the dispute related to only sub-heading of heading 48.23. Whereas the appellant was claiming the product to be classifiable under sub-heading 4823.90, Revenue upheld the classification under heading 4823.19. Chapter 49 has been taken note of, for the first time, by the Tribunal, while disposing of the assessee’s appeal. We find that in such a scenario, matter should have been remanded to the lower authorities to adjudge the applicability of various decisions of the Tribunal to the facts of the instant case. As already observed the dispute on classification would depend upon to the status of the paper being cleared. As such, we are of the view that in the absence of clear picture as regards the status of the product at the time of clearance and in the absence of the views of the adjudicating authority as also the appellate authority, as regards the product being covered by the Chapter 49, the matter should go back to the original adjudicating authority. Accordingly we return the file to the referral Bench for passing appropriate orders.
(Pronounced in Court)