Per P.K. Kapoor : In this case the question that arose for consideration was whether "Aluminium Foil backed by paper and polyethylene" was classifiable under Sub-heading 7606.00 of the Central Excise Tariff Act. 1985 or as "Laminated paper" falling under Sub-heading 4811.29 of the Central Excise Tariff. The matter was originally heard by a two Member Bench. The learned Member who recorded the order held that the matter was covered by the Tribunals order in the case of National Dairy Development Board (hereinafter referred to as NDDB) reported in 1992 (59) ELT 565 in which 'Tetra Pack Asceptic-packaging material" made of paper laminated with aluminium foil and polyethylene was held as classifiable under Sub-heading 4811.90. However, the second Member expressed the view that the matter needed to be referred to a larger Bench since in the case of NDDB the Tribunal had not considered the effect of definition of Toil' given in Note 1 (viii) to Chapter 76 of the Central Excise Tariff Act, 1985. The point of difference between the two Members was referred by the Hon'ble President to a third Member. Thereafter, having regard to the majority opinion this Larger Bench was constituted by the Hon'ble President.

2. On behalf of the appellants Shri D.A. Dave, ld. advocate with Shri V.H. Shah, Consultant appeared before us. Shri Dave stated that in the case of NDDB the Tribunal had noted that the constituents of the product being Base paper 265 gms. per Sq. Mtrs, Aluminium Foil 18 gms. per Sq. mtr. and Polyethylene (LD) 103 gms per Sq. mtr., its classification under Chapter 48 was not ruled out by notes I (f) and I (m) of Chapter 48 since Note (f) deals with composition of paper and plastic with predominance of plastic and Note (m) applies only when metal foil is backed with paper or paper-board. He added that in that case the Tribunal had observed that in order to decide the question whether die goods were covered by Chapter 48 of Chapter 76 was more appropriate, it was essential to have recourse to Rule 3 (a) of the Rules for interpretation of me Schedule to the Central Excise Tariff Act, 1985. He contended that the Tribunal had correctly applied Rule 3 (a) in determining the correct classification of the goods since in the case of Khandelwal Metal and Engineering Works Vs. Union of India, reported in 1985 ECR 2571 the Supreme Court had held that as per Rule 1 of the relevant Rules of Interpretation in the Import Tariff classification has to be determined according to the description of the article in die heading and if the heading or a note does not otherwise require, according to the provisions of the other rules and notes. He stated mat having regard to the fact mat die product in question had different materials as its constituents and me taking into account die wordings of the relevant headings of Chapters 48 and 76 and die notes to these chapters in para 12 of the decision in the case of NDDB Tribunal had correctly concluded that the most appropriate heading for the goods in question had to be determined only by applying Rule 3 of the Interpretative Rules of the Customs Tariff Act. He submitted that paper content being 265 gms. per Sq. Mtr. as against aluminium foil of 18 gms. per Sq. mtr. and polyethylene of 103 gms. per Sq. mtr., the essential character was not account of Aluminium and hence, die Tribunal had correctly held classification of die product under Chapter 76 was ruled out. He added that die product consisting of paper coated on one side with polyethylene and by aluminium foil sandwiched between two layers of polyethylene film on the other side could not be deemed as laminated aluminium film. He argued that under these circumstances having regard to the fact that paper was the major constituent and it provided essential character to the product, in the case of NDDB the Tribunal had correctly held that it was classifiable under Sub-heading 4811.29.

3. On behalf of the respondent Shri B.K. Singh, ld. SDR stated that the