ORDER
U.L. Bhat, J. (President)
1. Appellants are absent in spite of notice. When the appeal came up for hearing on 24-7-1996, appellants sent a telegram requesting adjournment. Request was allowed. When the appeal was adjourned to today fresh notice was issued. Appellants have not responded. We have heard Shri T.R. Malik, learned SDR and perused the papers.
2. Appellants are engaged in the manufacture of different items of Aluminium falling under Tariff Item 27. One of the items manufactured is Aluminium tea chest lining foil consisting of Aluminium Foil cut to size with tissue paper used as interleaving material. The dispute arises in relation to price list No. 6/83-84. The appellants sought deductions including deduction of cost of paper and cost of interleaving operation. The Assistant Collector disallowed these two deductions while he allowed other deductions. The disallowance of these two deductions was confirmed by the Collector (Appeals). Hence the present appeal.
3. Appellants place reliance on the learned Single Judge of High Court of Calcutta decision in India Foils Limited v. Union of India 1982 E.L.T. 966 (Cal.). Appellants in that case were engaged in the business of manufacture and sale of Aluminium including Aluminium tea chest lining foil. It is explained that tissue paper was not pasted to the foil using any adhesive. The appellants claimed the benefit of exemption Notification No. 155/72, dated 15-6-1972 when the Excise Department demanded payment of excise duty on the value of tissue paper also. It was held that cutting the foil and placing interleaving paper did not amount to manufacture and since tissue paper was duty paid, duty cannot be again demanded on the value of tissue paper. The Court also held that Notification did not apply to tissue paper and it applied only to Aluminium foils.
4. We do not think that above decision can be made applicable to the facts of the present case in view of the decision of the Supreme Court in Collector of Central Excise v. Eastend Paper Industries Limited – 1989 (43) E.L.T. 201 (S.C.). That case dealt with a situation where a person who manufactured printing paper as well as wrapping paper was clearing the printing paper wrapped in the wrapping paper both falling under T.I. 17(1) of the erstwhile Tariff. One of the questions arising for consideration was whether at the time of clearance of the printed paper wrapped in wrapping paper, the value of the wrapping paper should be included in the assessable value. The Tribunal in that case had held that the printing paper was packed and wrapped in wrapping paper and, therefore, the wrapping paper was raw material and component part of the end product. The Supreme Court observed as follows :
“To be able to be marketed or to be marketable, it appears to us, in the light of the facts in the appeals, that it was an essential requirement to be goods, to be wrapped in paper. Anything required to make the goods marketable, must form part of the manufacture and any raw material or any materials used for the same would be component part for the end product. In our opinion, the Tribunal was right in the view that it took.”
It was further held that the respondent in that case was entitled to the benefit of Notification No. 187/83-C.E., dated 9-7-1983 in regard to duty payable on the intermediate product, namely, wrapping paper at the stage of its clearance for use in the factory.
5. The interleaving tissue paper is placed between two layers of foil for protection and the process is a part of the packaging process. It is clear from the records that the foils, in question, were being marketed or delivered at the factory gate in that condition. Necessarily the cost of the tissue paper and of the operation must form part of the assessable value in the light of what the Supreme Court has indicated. In this view, the decision of India Foils Limited cannot be regarded as applicable to the facts. We may clarify that if wrapping paper at the earlier stage had suffered duty, the question whether the appellants would be entitled for proforma credit at the relevant time will have to be decided.
6. With above clarification, we dismiss the appeal.