ORDER
G.P. Agarwal, Member (J)
1. This appeal is directed against the impugned order-in-appeal passed by the Collector of Central Excise (Appeals), Bombay.
2. Shortly put the facts of the case are that, the appellants filed their Classification List No. 302/86 classifying their product Printed & Waxed Wrap per Paper under Heading 4811.40 and also claiming exemption under various notifications including Notification No. 63/82-C.E., dated 28-2-1982. However, it was approved under Heading 4818.90 denying the benefit of the exemption as claimed, as could be seen from column No. 9 of the said Classification List (Form 1, Part-II). Against that order of the approval, the appellants filed their appeal before the Collector (Appeals), but without success. Hence, the present appeal.
3. During the pendency of the appeal, the appellants have also filed the present Misc. Application to allow them to raise the plea of classification of the said goods under Heading 4811.40 read with Notification No. 63/82-C.E., dated 28-2-1982.
4. Arguing on the said application first, Shri V. Sridharan, learned counsel, submitted that since a ruling has to be given by this Tribunal on the correct classification, the appellants be permitted to raise the said additional plea as the entire material is on the record. In reply, Shri A.K. Madan, learned SDR, submitted that at no stage they claimed the classification of the subject product under Heading 4811.40 and the question of exemption notification would not arise as they cannot circumvent the provisions of Section 11B of the Central Excises & Salt Act, 1944 which makes provision for the filing of the refund. In other words, his submission was that in case the said additional ground is allowed to be raised and if ultimately it is found that the appellants were entitled for the benefit of the said Notification No. 63/82-C.E., as amended, they would claim the refund of the duty which by this time have become time-barred.
5. After hearing both sides, we allow the appellants to raise the said plea. As it is a question of classification, it could be decided on the evidence available on the record.
6. Arguing on merits that the subject goods should be classified under Heading 4811.90, he cited the case of Systems Packaging Ltd. v. Collector of Central Excise, 1990 (45) E.L.T. 165, decided by this Tribunal. But on being pointed out by the Bench that by the said decision of the Tribunal the subject products were found to be classifiable under Heading 4811.40, he submitted that it may be classified accordingly and the appellants would have no objection. In reply, Shri A.K. Madan, learned SDR, submitted that the subject goods should be classified under Heading 4811.40 as this Heading i.e. 4811.40 does not provide for printing.
7. We have considered the submissions. In the case of Systems Packaging Ltd., supra, this Tribunal was concerned with the identical product and after considering the various sub-headings it observed as follows :
“13. We have already extracted Heading 48.11 of the CET. It specifically covers inter alia, printed paper in rolls or sheets, of course, other than goods of Headings 48.03, 48.09, 48.10 or 48.18. It is nobody’s case that the present goods fall under Headings 48.03, 48.09 or 48.10. In our opinion, it does not fall under Heading 48.18 for reasons already stated. Sub-heading 4811.40 specifically covers “Paper and paperboard, coated, impregnated or covered with wax, paraffin wax, stearin, oil or glycerol”. Because of the specificity of this description, printed wax coated paper in rolls falls, in our opinion, under this sub-heading.”
8. Thus, following the ratio of the said decision, we hold that the subject product is to be classified under Heading 4811.40 and remand the case to the Assistant Collector of Central Excise (now designated as the Assistant Commissioner of Central Excise) having jurisdiction in the matter for deciding the claim of the appellants under the said exemption Notification No. 63/82-C.E., dated 28-2-1982, as amended, according to law.
9. The appeal stands disposed of in these terms. The Misc. Application also stands disposed of accordingly.
