Judgment

( 1 ) THESE appeals are against the orders of Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) dated 19th December, 1997 and 4th June, 1998. They are being disposed of by this common judgment as except for the period under consideration the law points are the same.

( 2 ) BRIEFLY stated the facts are as follows : in Civil Appeal Nos. 3224-3225 of 1998 the period under consideration is 1-3-1988 to 30-9-1989 and 1-10-1989 to January, 1990. In Civil Appeal No. 5176 of 1998 the period under consideration is 1987-88 and 1988-89. In civil Appeal No. 5176 of 1998, the appellant is also urging that during that period they were doing job work for one M/s. Flex Laminators and are thus not liable to pay excise. In the view we are taking it is unnecessary to deal with this aspect.

( 3 ) THE appellants filed a classification list showing the item as falling under Tariff items 3920. 36 and 3920. 38. The appellants claimed benefit of notification No. CE 53/88 dated 1st March, 1988. The appellants were issued Show Cause Notices on the basis that their goods did not fall under item 35 of the Notification but that they fell under Item 32. 3 of the Notification.

( 4 ) IN reply to the Show Cause notice, amongst other contentions, the appellants contended that merely by metallising/lacquering/laminating films no process of manufacture is undertaken so as to attract duty. Reliance was placed on Board Circular to this effect. Of course the circular relied upon was for an earlier period.

( 5 ) THE Assistant Collector held against the appellants. It was held that their goods fell under Item 32. 3. The Assistant Collector brushed aside the argument that there was no manufacture by concluding that the circular relied upon was in respect of an earlier Tariff Item. The Assistant Collector therefore avoided going into the question whether or not there was manufacture. The appeal filed by the appellants was allowed by the Collector (Ap- peals) who held that the appellants product fell under Item 35 of the said circular.

( 6 ) THE Tribunal has disposed of the appeal of the respondents by concluding that appellants product cannot fall under Item 35 of the Circular and that it would fall under Item 32. 3. The Tribunal has held that there was manufacture. The Tribunal has concluded that the appellants had not led any evidence to prove that there was no manufacture and that in the tariff they are recognised as distinct items classifiable under different sub-headings.

( 7 ) WE have heard the parties at great length. To decide the question whether the product manufactured by the appellants falls under Item 35 or Item 32. 3 one would have to look at the Circular. The Circular reads as follows :

"notification No. 53/88-CE dated 1-3-1988 effective rates of duty on the specified plastics and articles thereof. In exercise of the powers conferred by sub-rule (1) of R. 8 of the Central excise Rules, 1944, and in supersession of the Notification of the Government of India, in the Ministry of Finance (Dept. of Revenue) No. 132/86 central Excises, dated the 1st March, 1986, the Central Government hereby exempts goods of the description specified in column (3) of the table hereto annexed and falling under heading numbers or sub-heading numbers of the schedule to the Central Excise Tariff Act, 1985 (5 of 1996), as are specified in the corresponding entry in column (2) of the said table, from so much of the duty of excise leviable thereon which is specified in the said schedule, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said table, subject to the conditions, if any, laid down in the corresponding entry in column (5) of the said table. 378201. htm thereon under the CESA, 1944 or the additional duty under Sec. 3 of the Customs Tariff Act, 1975, as the case may be, has already been paid.

( 8 ) FOR the product to fall under Item No. 35, the product must be a "film" which has been produced out o