S.L. Peeran, Member (J)

1. The appellants are aggrieved with the order of Collector (Appeals) dt. 6-11-1990 by which he has dismissed their three appeals and confirmed three orders in original passed by the Asstt. Collector of Customs rejecting their refund claims.

2. The appellants imported Tetra Pack Aseptic packaging materials' made of polyethylene coated craft paper printed in Reels and declared as such in Bills of Entry. They were classified under Chapter Heading 4811.39 attracting duty @ 100% + 45% + CVD 35%. The appellants have claimed in refund application for classification under Chapter Heading 3921.90 and also claimed the benefit of the Notification No. 125/86-Cus., dt. 17-2-1986 as amended by 48/88. The Asstt. Collector has by a single line order held that the benefit of the Notification No. 125/86-Cus. to be applicable only to goods falling under Chapter Heading 39.20 only and refund claims as inadmissible.

3. The learned Collector has held that Chapter 39 covers plastic and articles thereof and the Notification No. 125/86 gives benefit to "Aseptic Packaging material" and bags of Heading No. 39.20, 39.21 or 39.23 (Sl. No. 37 of the table annexed to the said notification). He held that it was clear that for getting the benefit of aseptic packaging material and bags the same should be falling under specified headings and the exemption is not available to all types of aseptic packaging material. He held that the packing material is made of printed laminated paper and therefore is not classifiable under Chapter Heading 39 which covers only plastic articles thereof. He has observed that since the goods are made of paper, the same clearly fall under Chapter 48 which is for paper boards, articles of paper pulp, paper or of paper board. The Asstt. Collector had classified the goods under Chapter Heading 48.07; the Collector felt that the goods are more appropriately classifiable under 4811.29 in view of the fact that the packing material under import is made of printed laminated paper.

4. We have heard Shri A.K. Patnaik, learned consultant for the appellant and Shri L.N. Murthy, learned JDR for the revenue. Shri A.K. Patnaik submitted that the goods are not classifiable under Chapter Heading 48 as the type of the goods in question are excluded from Chapter 48 as the product was laminated with plastic and aluminium foil. He pointed out to Note (m) and (f) of Chapter 48 which excludes product made out of metal foil combined with paper. He submitted that the Rule 3(b) of Rules of Interpretation of Customs Tariff should be relied on to classify the goods in question. He submitted that paper is laminated with aluminium foil and plastic sheet to give acceptability to the packing material. He relied on the technical literature in support of his contention.

5. Shri L.N. Murthy, learned JDR submitted that the goods in question were 'polyethylene coated kraft paper'. The department had not taken samples for chemical test as the party had not claimed the benefit of the notification or challenged the initial classification under Chapter Heading 48. He contended that the goods were not made of metal foil and hence Note (f) (m) to Chapter 48 were not applicable. He pointed out to Chapter 76.07 which specifically deals with the products with aluminium foil not exceeding .2 mm and said that the goods will fall under this heading. He contended that the goods in question is not known in Trade as metal foil and commercially not known as such and the appellants had also not described it as such. The goods were not foil paper. He further contended that both the authorities had not looked into the chapter notes for classifying the goods and the technical literature produced by appellant had also not been looked into. He contended that the Chapter Heading 39 was not an appropriate entry and the classification in the present case has to be done on the basis of the predominance of the ingredients in the product as per Rule 3(a) of the Interpret