- (1.) THESE appeals are directed against the order dated 5 -9 -2005 passed by the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Mumbai (hereinafter referred to as "CESTAT") [ : 2005 (190) E.L.T. 84 (Tribunal)] holding that the product in question manufactured by the Respondent -Assessee which is known as 'shrink sleeves' is classifiable under Chapter 39 sub -heading 3020.19 and not under sub -heading 4901.90 as contended by the Revenue. To state the facts in brief, the Assessee is engaged in the manufacture of Plastics Laminated Flexible packing material and one of the products which is manufactured is 'shrink sleeves' as pointed out above. The Assessee had filed classification, classifying the said product under sub -heading 3920.19. Under Chapter 39 the aforesaid product classified by the Assessee pertains to "Plastics and articles thereof". Entry 3920.19 thereof is as under: "39.20 Other plates, sheets, film, foil and strip, of plastics, non -cellular, whether lacquered or metallised or laminated, supported or similarly combined with other materials or not. In nutshell, case of the Assessee is that this product is to be treated as one falling under plastic industry. The Revenue on the other hand is seeking to classify the same under sub -heading 4901.90. It may be mentioned that Chapter 49 deals with goods which are classifiable as printing products. Therefore, the question for consideration is as to whether the product in question can be treated as that of printing industry or it is covered by plastic industry. It is not in dispute that the Assessee is procuring duty paid plastic film in jumbo roles and slit the same to requisite size. It is then passed through a special machine where the slit plastic film gets bent, sealed and cut and emerges in a tabular form. This tabular form is known as 'shrink sleeves'. Since it is done by the Assessee for those who require the aforesaid product, there is a printing done on the 'shrink sleeves'. On that basis, argument of the Revenue is that insofar as the Assessee is concerned, it is printing on the aforesaid product and, therefore, that is the predominant purpose which would make the product classifiable under the sub -heading 4901.90 pertaining to printing industry. This argument was disapproved by the Assessee with the statement that printing on the 'shrink sleeves' is only incidental and not of primary use. According to the Assessee the main purpose of the product is to provide tamper protection to the product inasmuch as it is shatter resistance, enhance puncture resistance and tamper proof packing.
(2.) LEARNED Counsel for the Revenue submits that it is not in dispute that it is the primary function of the product that would be the determinative test. In fact, the learned Counsel has referred to the judgment of this Court in Metagraphs Pvt. Ltd. v. Collector of Central Excise, Bombay : 1996 (88) E.L.T. 630 (S.C.), wherein the court has inter alia held as under: "In Rollatainers Ltd. and Anr. v. Union of India and Ors. case, this Court was considering whether printed cartons manufactured by the Appellants in that case were products of the printing industry. This Court held as follows: - "We are of the view that to a common man in the trade and in common parlance a carton remains a carton whether it is a plain carton or a printed carton. The extreme contention that all products on which some printing is done, are the product of printing industry, cannot be accepted." What follows from the aforesaid judgment is that each case has to be considered on its own facts and test determinative, whether a particular product falls within one class or the other depends upon the nature of the product with reference to the facts of each case and to cull out what is the true determining purpose for which the product is used and is treated by the traders as well as consumers of the said product. This is so explained by the Court in Metagraphs Pvt. Ltd. (supra) in the following manner: "The label announces to the customer that the product is or is not of his choice and his purchase of the commodity would be decided by the printed matter on the label. The printing of the label is not incidental to its use but primary in the sense that it communicates to the customer about the product and this serves a definite purpose. This Court in Rollatainers case held that what is exempt under the notification is the 'product' of the printing industry. The 'product' in this case is the carton. The printing industry by itself cannot bring the carton into existence". Let us apply this above formula to the facts of this case. The 'product' in this case is the aluminium printed label. The printing industry has brought the label into existence. That being the position and further the test of trade having understood this label as the product of printing industry, there is no difficulty in holding that the labels in question are not products of printing industry. It is true that all products on which some printing is done, are not the products of printing industry. It depends upon the nature of products and other circumstances. Therefore the issue has to be decided with reference to facts of each case. A general test is neither advisable not practicable. We are, therefore, of the opinion that the Tribunal was not right in concluding that the printed aluminium labels in question are not 'products of printing industry."
(3.) WHEN we apply the aforesaid test to the facts of the present case, we are clear in our mind that the printing was only incidental and the main purpose of the product is to provide tamper protection to the product to make shatter resistance, enhance puncture resistance and tamper proof packing.;