Per Shri P.C. Jain :

Question involved in the present appeal is regarding the classification of Aluminium Foil Pouch. Lower Authorities have classified the product under Tariff Sub-Heading No. 7612.99 whereas the learned Counsel has stressed that the correct classification would be under Tariff Sub-Heading: 7607.90.

2. In order to appreciate the contention of the learned Counsel for the appellants, we reproduce below the relevant Heading Nos. 76.12 and 76.07:-

3. Learned Counsel has stressed that the Tariff Heading No. 76.12 uses the words, 'similar containers'. In other words, he points out that the classification under this Heading can be made only if the containers are similar to aluminium casks, drums, cans, boxes. One characteristic of the aforesaid goods, he submits is that the aluminium metal therein is of rigid quality. It does not have the characteristic of flexibility like that of an aluminium foil. Therefore, it has been submitted that aluminium foil pouch will not fall under the Heading: 76.12. Another characteristic, pointed out by him is that all these containers mentioned in the Heading No. 76.12 do not have any backing of any other material. Therefore, aluminium foil pouch which is backed in the present case, by plastics, both inside and outside of aluminium metal foil, will not be covered by Heading No. 76.12. He, therefore, submits that Heading 76.07 will be more appropriate. He also draws attention to the fact that cut-to-shape aluminium foil under Heading 76.07 has also been classified therein. In the present case, he submits that nothing beyond cut-to-shape has been done in as much as, after cutting to shape the aluminium foil and backing it with the plastic sheets by heat-sealing process, it automatically takes the shape of a pouch. Therefore, learned Advocate submits that Heading: 76.07 will be more appropriate than 76.12.

4. Opposing the contentions, learned J.D.R., Shri S.N. Ghosh points out that Heading: 76.07 relates only to aluminium foil whether backed, inter alia, with plastics or it refers only to the shape of aluminium foil. In this context, Shri Ghosh alludes to Chapter Note 1 (d) of Chapter 76 where plates, sheets, strip and foil have been defined. For better appreciation, we reproduce below the same :-

"(d) Plates, sheets, strip and foil

Flat-surfaced products (other than the unwrought products of heading No. 76.01), coiled or not, of solid rectangular (other than square) cross-section with or without rounded corners (including 'modified rectangles of which two opposite sides are convex arcs, the other two sides being straight, of equal length and parallel) of a uniform thickness, which are: