Per Shri T.P. Nambiar :

This is an appeal filed by the appellant against the orders passed by the Commissioner (Appeals) in order No. 421/97 dt. 31.3.1997. In terms of that order, he upheld the orders passed by the Asst. Commissioner, holding that the writings, marks etc. on the cartons show that this unmanufactured Tobacco is a preparation of M/s. BAT (UK and Export) Ltd., specifically made for M/s. ITC Ltd. and they are classifiable under 2401.90 as "branded unmanufactured Tobacco".

2. The brief facts of the case as mentioned in the order-in-original are that the appellant M/s. ITC Ltd., Bangalore have imported 13248 Kgs of unmanufactured tobacco for CF value of £ 65,768/- from BAT (UK and Export) Ltd., England. The CHA of the importer, namely M/s. Royal Agencies have filed the Bill of Entry No. 5783 dt. 21.1.97 for the clearance of the imported goods. Goods were examined on first appraisement. The assessing officer also inspected the goods.

The imported goods namely unmanufactured tobacco are packed in 288 thick cardboard cartons. Three distinctive writings are available on the outside of the cartons. One such writing is "BATUKE" which is printed in bold letters. Another writing is of "DBIT00460". The other writing is "MND3". These writings on the cartons are apart from the regular marks and numbers available on the cartons, and these marks and numbers are given so that the importer may identify his goods.

M/s. ITC have been importing unmanufactured tobacco regularly. They have been classifying the goods under Customs Chapter heading 2401.20 and paying the relevant Customs Duty. They have been classifying the goods under Central Excise Tariff heading 2401.10 which attracts "NIL" rate of Central Excise duty and thus paying no Central Excise duty on import. In the instant case also, they had classified the goods under Customs Chapter heading 2401.20 and Central Excise Chapter heading 2401.10, the duty according to them being 50% + 2% + NIL (CVD).

3. The adjudicating authority in the impugned order held that the word or the writing "BATUKE" printed on the cartons containing tobacco is a brand name as per chapter note 1/24 of the schedule to the Central Excise Tariff Act 1985. He, therefore, classified the same under tariff sub heading 2401.90. Accordingly, he assessed the same to duty of 40% basic + 10% additional duty. This decision was taken in appeal and the learned Commissioner (Appeals) dismissed the appeal. Against this decision, the present appeal is filed.

4. The learned advocate Shri R. Sashidharan appearing for the appellants contended before us that the Commissioner (Appeals) has failed to appreciate that the judgement of the Hon'ble Supreme Court in the case of Astra Pharmaceuticals (P) Ltd., applies all force to the present case. In this connection, relied upon the above said decision reported in 1995 (6) RLT 445 (S.C.) = 1995 (75) ELT 214 (SC). Relying on the above said decision, it was contended that the distinction between the House mark and Product mark has been brought out. Similarly, he pointed out that in this case "BATUKE" on the packing has been used to project the image of the manufacturer generally and does not establish any relationship between the mark and the tobacco. It was contended that the wording on the packing was only to identify the manufacturer. He, therefore, pointed out that the attempt made by the Commissioner (Appeals) to bring out a distinction between the facts of the present case with the facts in the case of Astra Pharmaceuticals which was dealt with by the Supreme Court is not correct. He, therefore, pointed out that the impugned order is based on an erroneous conclusion that the above case will not apply to the facts of this case. He pointed out that in the case before the Supreme Court, their lordships were concerned with the interpretation of identical expression and by applying the ratio of the above said judgement, the impugned order is contrary to law.

5. Reliance was also plac