V.T. Raghavachari, Member (J)

1. M/s. Sunrise Agencies had imported two consignments, one of 31 bales and Anr. of 21 bales, the goods being "Gskhi-Mckinley both sides coated art paper". These 52 bales were kept in bond and subsequently cleared on five different dates on payment of duty. Duty was assessed under heading 40.01/21 (1) CTA as against heading 48.01/21 (3) CTA as claimed by the appellants. The appellants filed refund claims which were rejected by the Assistant Collector under two orders one dated 30-11-1981 and the other dated 26-2-1982. The rejection was on the basis that the art paper was of weight 210 grams per square meter and that the lower rate of duty claimed by the appellants could be extended only to paper below 180 grams per square meter. Two appeals preferred against the said orders were dismissed by the Appellate Collector under a consolidated order dated 8-6-1982. The Revision Petition filed against the said order was on receipt, on transfer, numbered as appeal No. 118 of 1982; Subsequently, since there were five different refund claims disposed of by the Assistant Collector, four supplementary appeals were filed which have been numbered as A. No. 1724, 1728, 1729 and 1730/86-D.

2. We have heard Shri B.S. Bawdekar, Consultant for the appellants and Smt. D. Saxena SDR for the Respondent.

3. The rejection of the refund claims by the Assistant Collector was on the basis of weight. The Appellate Collector had held that weight, which would be relevant to decide whether a product is paper or board, is not relevant on the present basis. He therefore did not base his decision on this ground of weight. The appellant had, in their appeal before the Collector, relied upon evidence of trade regarding use of the imported product for the "purpose of printing. But the Appellate Collector had refused to place any reliance on such evidence on the ground that the printer could use either board or paper for printing and therefore use for printing would not be relevant. His decision was on the basis that art paper is excluded from heading 48.01 of the CCCN and included separately under heading 48.07 and hence the art paper imported by the appellants would be classifiable under heading 48.07 of CCCN. He held "since here is a specific item in the CCCN for art paper, and art paper has been excluded from printing and writing paper in CCCN classification for 48.01, even if the paper is used for printing and writing, the same will not be classifiable as printing and writing paper under 48.01 or corresponding entry for 48.01/21 (3)".

4. Shri Bawdekar questions the correctness of this reasoning and, in that connection, relies upon on earlier order passed by an another Appellate Collector Shri MG.. Vaidya dated 19-1-80. Under the impugned order-in-appeal the Appellate Collector had referred to the earlier order also but had distinguished the same. Shri Bawdekar further wanted to rely upon certain other imports of art paper and the acceptance by the Department of heading 48.01/ 21 (3) CTA as the proper heading therefor. But since we have to decide upon the proper classification of the imported product, reliance of how the goods were accepted for clearance in other instances may not be wholly conclusive.

5. As earlier mentioned, the rejection by the Appellate Collector of heading 48.01/21 (3) CTA was on the basis that art paper had been excluded from heading 48.01 in the CCCN, which included printing paper also, but separately provided for under heading 48.07. So far as the Customs Tariff Act is concerned heading 48.01/21 relates to paper and paper board of all sorts. Sub-heading 2 relates to news print with which we are not concerned in the present case. Sub-heading 3 relates to "other printing and writing paper". Sub-heading 1 relates to paper and paper board not elsewhere specified. Therefore Sub-heading 1 will be attracted only if the products would not fall under Sub-heading 2 or Sub-heading 3. The products in question admittedly