V.T. Raghavachari, Member (J)

1. Notice dated 7-6-1979 was issued by the Assistant Collector of Central Excise, Calcutta-XII Division to the appellants M/s. Dalmia Laminators that they had been since 1-3-1975 manufacturing and removing laminated jute bags classifiable under Item 68 CET without taking out a licence therefore and without payment of central excise duty and that they had been doing so with intention to evade payment of the said duty. The appellants claimed that the subject goods were classifiable under Item 22A CET and that the demand under notice was not justifiable. The Assistant Collector rejected the said defence and held that the company was liable to pay duty under Item 68 CET for the period 1-3-1975 to 5-6-1979. The reference to 5-6-1979 was for the reason that under Notification 204/79-CE dated 6-6-1979 laminated jute bags had been exempted from payment of duty under Item 68 CET. The appeal against the said order was dismissed by the Appellate Collector under his order dated 25-6-1982. This appeal is against the said order.

2. We have heard Shri N. Mookherjee, Advocate for the appellants and Smt. Saxena, for the Department.

3. Shri Mookherjee conceded that there are several decisions of this Tribunal on this issue whether the laminated jute bags during the period in issue fell under Item 22ACET or 68 CET and that the said decisions are against the appellants but claimed that in his submission the decisions were not correct. The said decisions are :

(i) Shriram Jute Mills Ltd., MANU/CE/0218/1985 : 1986 (23) ELT 446

(ii) Birla Jute Manufacturing Co. Ltd. , 1985 (26) ELT 1032

(iii) lnnes Watson Co. (P) Ltd., 1987 (9) ETR 363

These decisions have followed the decisions of the Calcutta High Court in the case of Dalhousie Jute Company Ltd. The judgment of the single judge is reported in AIR 1970 Calcutta 497. The judgment of the division bench on appeal, affirming the judgment of the single judge, is dated 14-8-1985 in appeal No. 515 of 1971 but the same does not appear to have been reported. Shri Mookherjee has filed before us a copy of the said judgment dated 14-8-1975 of the division bench. The Calcutta High Court had held that the laminated jute bags were new goods different from the jute fabric and the laminated jute fabric but the laminated jute bags would not fall under Item 22A CET. It is for that reason that they had held that these new goods (laminated jute bags) would not be liable for duty as they did not fall under any of the items enumerated in the first schedule of the CET.

4. The Tribunal in its decisions cited earlier took note of, and followed, the said decisions of the Calcutta High Court, in the absence of any other judgment of any High Court to the contrary on the question of classification of the subject goods. The Tribunal observed that after 1-3-1975 the position will be different since the goods would thereafter fall under Item 68 CET as goods not elsewhere specified in the CET. It is for this reason that the Tribunal held that after 1-3-1975 the goods were classifiable under Item 68 CET and became liable for duty till 5-6-1979 when they became exempt under Notification No. 204/79-C.E., dated 6-6-1979.

5. Shri Mookherjee submits that the said decisions were not correct since they did not take note of the amendments to the entry 22A in 1972 and again in 1977.

6. In 1972, Item No. 22 A was amended whereby the coverage of the item was defined in a more specific manner than what was the case prior to the amendment. The effect of the 1972 amendment was that jute manufactures of the following descriptions were excluded from the scope of the entry :

(a) containing 40 % or more by weight of wool;

(b) containing no wool or less than 40% of wool and less than 50% by weight of jute Bimlipatam Jute or Mesta fibre).

In 1977, entry Item No. 22 A was again amended, the effect of the amendment being that jute manufactures all sorts, not elsewhere specified, in which jute (including Bimlipatam Jute or Mesta f