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TMI Blog2009 (3) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... (including teats) of vulcanized rubber other than hard rubber, with or without fittings of hard rubber. - The list of items covered under HSN Notes to Heading 40.14 are all not capable of use as such independently - The latex bulb in question used in an IV set, in our view, is a hygienic article of vulcanized rubber other than hard rubber belonging to the family of articles cited in the above H.S.N. Note - We hold that the item is appropriately classifiable under C.S.H. 4014.90 as decided by the original authority. The impugned order is therefore liable to be set aside. – Goods further marketable as identical goods imported for sale – Revenue’s appeal allowed - E/344/2003 - 278/2009 - Dated:- 16-3-2009 - Ms. Jyoti Balasundaram, Vice- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere covered by that heading. Latex bulbs were an item analogous to those mentioned in the HSN Notes to Chapter Heading 4014. As per Note 1 of Chapter 90 that Chapter did not cover articles of a kind used in machines, appliances or for any other technical uses, of vulcanized rubber. The impugned item was an article used for other technical uses. This Note did not indicate that the same did not apply to parts of other goods. The Commissioner (Appeals) had wrongly resorted to Chapter Note 2(a) of Chapter 90; the same could not be applied where Note 1 of Chapter 90 applied. Where the language of the entry covered an item resort to interpretative rule 3(c) by the Commissioner (Appeals) was incorrect. 3. In the cross-objection filed by the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articles of vulcanized rubber falling under Chapter Heading 4016 alone were excluded from Chapter 90. These were articles of cellular rubber and goods such as floor covering, mats. He also relied on a judgment of the Apex Court in Geep Flashlight Industries Ltd. v. Union of India - 1985 (22) E.L.T. 3 (S.C.) in support of the argument that latex bulbs were not articles of rubber. In the judgment cited the apex Court had held that meaning of the expressions used in a taxing statute for describing a commodity had to be understood as that given to it by persons in the trade dealing with such goods. We have also heard the learned SDR who reiterated the grounds raised in the appeal. 4. We have carefully considered the case records and the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 1(a) of Chapter 90 reads as follows. "1. This Chapter does not cover, Articles of a kind used in machines, appliances or for other technical uses, of vulcanized rubber other than hardened rubber (Chapter 40), of leather or of composition leather (Chapter 42) or of textile material (Chapter 59)" By virtue of this Note, articles of vulcanized rubber such as latex bulb cannot be classified under Chapter 90. Therefore the classification ordered by the Commissioner (Appeals) is incorrect. Tariff entry 40.14 covers hygienic or pharmaceutical articles (including teats) of vulcanized rubber other than hard rubber, with or without fittings of hard rubber. The coverage of this entry is explained in the H.S.N. as follows:- "This heading cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was a distinct and different commodity commonly known in the market as torch, it was observed. The impugned goods are made wholly of vulcanized rubber unlike in the case of plastic torch and is covered by a specific entry in the Tariff. The other argument that the articles of rubber excluded from Chapter 90 at the material time were those of Heading 40.16 in terms of the present Chapter Note 1(a) cannot be countenanced. At the material time the said Chapter Note was to the effect that Chapter 90 did not cover articles of a kind used in machines, appliances or for other technical uses, of vulcanized rubber other than hardened rubber of Chapter 40. The exclusion as regards articles of vulcanized rubber are concerned was not limited to those ..... X X X X Extracts X X X X X X X X Extracts X X X X
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