ivil Appeal Nos
160 63 of 1990
From the Order dated 25989 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal No E188385 C E203185 C E 146888 C and E 198688 C Order No 543 546 of 1989 C
ML Lahoty Mrs Meeta Sharma and PS Jha NP for the Appellant
M Chander Sekaran Additional Solicitor General NP
M Gouri Shanker Murthy G Venkatesh Rao and P Parameshwaran for the Respondent
The Judgment of the Court was delivered by 320 SC AGRAWAL J
These appeals raise for consideration the question as to whether egg trays and other similar products manufactured by the appellant can be regarded as Containers  under the relevant entries in the Central Excise Tariff
Till February 28 1986 the excise tariff was contained in the First Schedule to the hereinafter referred to as the old Tariff  and with effect from March 1 1986 the excise tariff is contained in the Schedule to the hereinafter referred to as the new Tariff
The relevant entry in the old Tariff was Item 17
During the period March 1 1982 to February 1983 the said Item 17 read thus Paper and paper board all sorts including paste board mill board straw board cardboard and corrugated board and articles thereof specified below in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power 1 Uncoated and coated printing and writing paper other than poster paper 2 Paper board and all other kinds of paper including paper or paper boards which have been subjected to various treatments such as coating impregnating corrugation creping and design printing not elsewhere specified
a All sorts of paper commonly known as Kraft paper including paper and paper board of the type known as Kraft liner or corrugating medium of a substance equal to or exceedings 65 gram per square metre in each case
b Others
3 Carbon and other copying papers including duplicator stencils and transfer papers whether or not cut to size and whether or not put up in boxes
4 Boxes cartons bags and other packing containers including flattened or folded cartons whether or not printed and whether in cartons whether or not printed and whether in assembled or unassembled conditions 321 Item 68 of the old Tariff was in the nature of residuary entry
By notification No 6682 CE dated February 28 1982 the Central Government in exercise of the powers conferred by sub rule 1 of rule 8 of the Central Excise Rules 1944 exempted articles of paper or paper board falling under sub item 4 of item 17 of the old Tariff from the whole of the duty of excise leviable thereon
The said exemption was however not applicable to printed boxes and printed cartons including flattened or folded printed boxes and flattened or folded printed cartons whether in assembled or unassembled condition
With effect from March 1 1983 Item 17 was substituted and during the period March 1 1983 to February 28 1986 it read as under c Paper and Paper board all sorts including pasteboard mill board strawboard cardboard and corrugated board and articles thereof specified below in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power 1 Paper board and all other kinds of paper including paper or paper boards which have been subjected to various treatments such as coating impregnating corrugation creping and design printing not elsewhere specified
2 Carbon and other copying papers including duplicator stencils and transfer papers whether or not put up in boxes
3 Boxes cartons bags and Other packing containers including flattened or folded boxes and flattened or folded cartons whether or not printed and whether in assembled or unassembled conditions
 In the new Tariff the relevant entry under Heading 4818 in Chapter 48 is as follows G 4818 OTHER ARTICLES OF PAPER PULP PAPER
PAPERBOARD CELLULOSE WADDING OR WEES OF CELLULOSE FIBRES Cartons boxes containers and cases including flattened or folded boxes and flattened or folded cartons whether in assembled or unassembled condition 322 481811 Intended for packing of match sticks 481812 Printed cartons boxes containers and cases made wholly out of paper or paper board of heading No or sub heading No 4804 480511 480619 480791 480792 4808 or 481110 as the case may be 481813 Other printed cartons boxes and cases 481819 Other 481820 Toilet tissues handkerchiefs and cleansing tissues of paper 481890 Other On products falling under sub Heading 481819 the excise duty was nill whereas on products falling under sub Heading 481890 the excise duty was payable at the rate of 12
Ms G Claridge  Company Ltd the appellant herein manufactures i egg filler flats ii egg cartons iii tube light packing trays iv duck egg trays and v apple trays
It filed a classification list for the above goods effective from April 1 1981 classifying the products under Item 68 of the old Tariff and it was paying duty at the prevailing rate under Item 68
After the introduction of the revised Item 17 with effect from February 28 1982March 1 1982 the said appellant filed a revised classification list effective from March 1 1982 for the aforesaid five products seeking classification under Item 174 and claiming full exemption from central excise duty under notification dated February 28 1982
This classification list was approved by the Assistant Collector of Central Excise Pune Division on March 11 1982 but on re examination Department felt that the said products did not merit classification under Item 174 but under Item 68 of the old Tariff and a show cause notice dated May 4 1984 was issued
After considering the reply of the appellant to the said show cause notice the Assistant Collector of Central Excise Pune Division passed an order dated January 28 1985 whereby he held that egg trays  manufactured by the appellant were correctly classifiable under Item 68 of the old Tariff and not under Item 174 and the appellant was required to pay central excise duty at the appropriate rate leviable on all types of egg trays manufactured and cleared from its unit during the period of six months prior to the notice dated May 4 1984
The Assistant Collector was of the view that the articles manufactured by the appellant were articles manufactured directly from the pulp and were therefore classifiable as articles of pulp  under Item 68
The said order of the Assistant Collector was reversed in appeal by the Collector of Central Excise 323 Appeals by his order dated April 30 1985 on the view that the products manufactured by the appellant were made out of waste paper and they were classifiable under Item 174 as articles of paper and paper board 
Feeling aggrieved by the said order of the Collector Appeals the Department filed appeals Nos
E188385 C and E203185 C before the Customs Excise and Gold Control Appellate Tribunal hereinafter referred to as the Appellate Tribunal 
After the introduction of the new Tariff with effect from March 1 1986 the appellants filed a classification list classifying their products as containers  falling under sub heading 481819 of the new Tariff and since no duty was payable under the said sub heading the appellants claimed exemption from payment of excise duty on their products
The said classification list was approved provisionally but subsequently the Assistant Collector Central Excise issued a show cause notice dated October 16 1986 proposing to classify the goods under sub heading 481890 chargeable to duty  12 ad valorem
After considering the reply to the said show cause notice the Asstt
Collector Central Excise by his orders dated April 15 1987 and July 1 1987 held that the products manufactured by the appellant were not containers  but were articles of pulp  falling under sub heading 481890
The said orders were set aside by the Collector of Central Excise Appeals by his orders dated March 22 t988 and June 6 1988
The Collector Appeals held that the products manufactured by the appellant were packing containers  and classifiable under sub heading orders of the Collector Appeals 481819
Feeling aggrieved by the Department filed appeals before the Appellate Tribunal which were registered as Appeals Nos
E146888 C and E198688 C
All the above four appeals were disposed by the Appellate Tribunal by a common order whereby the said appeals were allowed
The Appellate Tribunal held that the products manufactured by the appellant cannot come within the sub classification below containers and were not classifiable under sub heading 481819 but were classifiable under sub head ing 481890 of the new Tariff and similarly they were not classifiable under item 174 or 173 of the old Tariff
The Appellate Tribunal was also of the view that the products manufactured by the appellant are articles of paper because starting raw materials is waste paper
The Appellate Tribunal has held that the duty demanded by the Assistant Collector for six months prior to the issue of show cause notice dated May 4 1984 ie from November 4 1983 is legally sustainable and with regard to recovery of the duty for the earlier period from March 1 1982 by invoking the proviso to Section 11 Al of the  the Appellate Tribunal remanded the matter to the Collector Appeals for considering the said question
324 The question which arises for consideration in these appeals is whether the egg trays and other similar products manufactured by the appellants are containers  falling under Item 174 of 173 of the old Tariff and sub heading 481819 of the new Tariff
The learned counsel for the appellant has urged that the products manufactured by it are containers  and in support of this submission the learned counsel has invited our attention to the meaning of the term container  as contained in the Dictionaries and the Indian Standard Glossary of Terms relating to paper or paper board packaging materials Glossary of Packaging Terms USA and Glossary of Packaging Terms Australia
The submission of the learned counsel is that a container  is a receptacle which holds restrains or encloses the item to be stored or transported and that the egg tray and other similar products manufactured by the appellant are containers  because they are receptacles for holding storing and transporting the things kept in them
It has been urged that a tray  is a shallow lidless container and merely because an egg tray is described as a tray does not mean that it is not a container 
It is contended that egg trays are so designed as to protect the eggs from breakage and that egg trays provide the best mode for storage and transport of eggs
The learned counsel has submitted that the Appellate Tribunal was in error in proceeding on the basis that egg tray and other similar products manufactured by the appellant cannot be regarded as containers  because when a single egg tray is reversed or turned upside down or tilted sideways vertically at 90 angle the contents would fall down
The submission of the learned counsel is that it is not required that a container should be closed from all sides and that a container can also be open
The expression container  has been thus defined in the dictionaries and Glossaries of Packaging Terms Container One that contains a receptacle or flexible covering for shipment of goods
Abstract from Webster s New Collegiate Dictionary 1975 Container that which contains that in which goods are enclosed for transport
Abstract from Chambers  20th Century Dictionary Containers Any receptacle which holds restrains or 325 encloses any article or commodity or articles or commodities to be stored or transported
Abstract from Indian Standard Glossary of Terms 18 4261 1967 Container
1 In general any receptacle or enclosure used in packaging and shipping
2 Relatively large reusable enclosures to be filled with smaller packages and discrete objects to consolidate shipments and allow transport on railway flat cars flatbed trailers aircraft in ships  holds or as deckloads etc
See CARGO TRANSPORTER CONTAINERIZATION
3 Any receptacle for holding a product Abstract from Glossary of Packaging Terms USA Container
A large box for intermodal transport containing many smaller boxes of different shapes and sizes as well as individual articles
Abstract from Glossary of Packaging Terms Australia The above definitions would show that the expression container  is used in three different senses in a broad sense it means a receptacle which contains in a narrower sense it means a receptacle in which articles are covered or enclosed and transported and in a more limited sense it means enclosure used in shipping or railway for transport of goods
If used in a broad sense container  would include a tray because it is a receptacle which contains articles and therefore an egg tray would be a container 
But an egg tray would not be a container  in a narrower sense because articles placed in it are not covered or enclosed and they cannot be transported as such
It istherefore necessary to ascertain whether the expression container  in Item 17 of the old Tariff and Heading 4818 of the new Tariff has been used in the broad sense to include all receptacles or in a narrower sense to mean those receptacles in which the articles are covered or enclosed and transported
For this purpose the context in which the word container  has been used in these entries has to be examined
In Item 17 of the old Tariff the word containers  is preceded by the words boxes cartons bags and other packing  and in Heading 4818 of the new Tariff the word containers  is preceded by the words cartons boxes  and is followed by the words and cases 
It is a well accepted canon of statutory construction that when two or more words which are susceptible of analogous meaning are coupled together they 326 are understood to be used in their cognate sense
It is based on the principle that words take as it were their colour from each other that is the more general is restricted to a sense analogous to a less general
See Dr Davendra M Surti vs State of Gujarat  at p 240
Considering the expression containers  in the context in which it is used in the relevant tariff items we are of the opinion that the said expression has to be construed to mean packing containers  which are analogous to boxes and cartons that is an enclosed receptacle which can be used for storage and transportation of articles
Egg trays being receptacles which are not covered or enclosed cannot be used for transportation of articles and therefore they cannot be regarded as containers  under the abovementioned entries in the Excise Tariff
According to the New Encyclopaedia Britannica the practice followed in the various countries for the packaging of eggs for transport is as follows Packaging
For retail use in the United States eggs are repackaged in dozen and half dozen paperboard cartons
In some other countries they are packed with straw or excelsior in long wooden boxes
In many parts of the world they are marketed in baskets or boxes and the individual eggs are sold by weight
Several European countries stamp each egg with a date and number to meet the import restrictions of other nations p 444 Vol 6 1974 edition The Glossary of Packaging Terms USA also shows that moulded pulp egg trays are put in a standard case which indicates that the egg trays containing the eggs are put in a case for the purpose of transport
In other words the case in which the egg trays are put are containers  and not the egg tray  itself
For the reasons aforesaid we are of the opinion that the Appellate Tribunal was right in taking the view that the egg trays and other similar products manufactured by the appellant cannot be regarded as containers  under the relevant items of the Excise Tariff
The appeals therefore fail and are accordingly dismissed
There will be no orders as to costs
R P Appeals dismissed


Summary:
The Lift Irrigation Corporation Ltd had three categories of services namely Mechanical Electrical and Composite unit of Mechanical Electrical when it was carved out of the Government organisation
Subsequently due to administrative exigency the Corporation decided to reorganise its set up and classify the employees into two categories  namely Electrical and Mechanical by amalgamating the composite Electrical and Mechanical Engineering diploma holders either in Electrical or Mechanical wing and invited objections to the scheme
It also called for options from persons holding only the composite diploma namely Mechanical and Electrical Engineering Supervisors
On consideration of options received the Corporation prepared two gradation lists in the order of seniority from the respective dates of appointment to the posts and higher scale of pay held by respective Persons and fitted them in the respective lists as per options
Respondent No 1 a diploma holder in Electrical Engineering who 342 was working as Sub Assistant Engineer Electrical in Government service and had been drawn on deputation to the Corporation along with Respondents No 6 and 7 appellants in third appeal holders of double diploma in Mechanical and Electrical Engineering and working as Mechanical Supervisors along with others had not filed any objection to the scheme but questioned before the High Court the gradation of Respondents No 6 and 7 and others in the Electrical Wing
The High Court quashed the gradation lists and directed the Government and the Corporation to treat Respondent No 1 and the other respondents as belonging to two cadres of Sub Assistant Engineer Electrical and Mechanical respectively
The Corporation the State Government and the aggrieved employees filed separate appeals by special leave contending that the Corporation had the power to amalgamate the three sections into two due to administrative exigency and to prepare seniority lists from respective dates of employees  initial appointment etc
Respondent No 1 contended that his seniority as No 2 in the Electrical Wing could not be disturbed by taking Mechanical Supervisors into the Electrical Wing offending his right to promotion enshrined under Articles 14 and 16 of the Constitution
Allowing the appeals this Court HELD 1 1 The Government or the Corporation due to administrative exigencies is entitled to and has power to reorganise the existing cadres or amalgamate some or carve out separate cadres
The decision to amalgamate the existing cadres by reorganising them into two cadres being a policy decision taken on administrative exigencies is not open to judicial review unless it is mala fide arbitrary or bereft of any discernible principle
345E G 12 On account of amalgamation into two cadres by absorbing the personnel working in the composite cadre namely Electrical Mechanical in either Electrical or Mechanical cadre and their adjustment the order of seniority of the employees working in Electrical or Mechanical cadres is likely to be reviewed
When the persons in the composite Electrical Mechanical cadre opted to the Electrical cadre they were entitled to be considered for their fitment in the cadre as per the seniority from the date of their initial appointment vis a vis their scale of pay
This was the procedure adopted by the Corporation in fixing the 343 inter se seniority
The procedure adopted is just fair and reasonable and benificial to all the employees without affecting their scales of pay or losing the seniority from the date of initial appointment
345G H 346A B Undoubtedly in this process the first respondent lost some place in seniority which is consequential to amalgamation
He has not been deprived of his right to be considered for promotion only his chances of promotion have been receded
13 There is no fundamental right to promotion
An employee has only right to be considered when it arises in accordance with the relevant rules
346C 14 In the circumstances the High Court was not right in holding that the gradation list prepared by the Corporation was in violation of Respondent No 1 s right to equality enshrined in Article 14 read with Article 16 of the Constitution and that he was unjustly denied of the same
346D