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TMI Blog1992 (1) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants before them. 2. The impugned orders have been assailed on the ground that the subject product is not in the form of plates, sheets and strips as contemplated under Item 16A (2); that the goods are hardened rubber products and the authorities have not proved that they are "unhardened" rubber products. Their further claim is that the same goods have been subjected to chemical examination by Chemical Examiner, Cochin; Rubber Research Institute of India, Kottayam and National Chemical Laboratory, Pune and have been held to be hardened rubber, but this fact, which was placed before the Collector (Appeals), has not been taken into consideration by him. The appellants have also disputed the interpretation of the lower authorities placed on Notification 43/76 on the expression "non-curing". 3. Arguing for the appellants, Shri. V. Sridharan, ld. Counsel, referred to the Flow Chart for the manufacture of the subject goods which was submitted by them to the Assistant Collector in which the chemical composition and method of manufacture was explained. It would be useful to refer to the relevant portions of this Flow Chart, which the ld. Counsel had read out at the hearing : "P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to the buffed casing which is also cured is done by means of a vulcanised bonding gum. This produce is usable for retreading of tyres. This being a product having been introduced in India for the first time there is no common nomenclature for this product but we name the same as procured tread rubber for tyres. This product being a vulcanised and hardened rubber product with matrix designs on it, it is classifiable only under T.I. 68 and not under T.I. 16A(2)." 4. Shri Sridharan submitted that moulding and vulcanising are done simultaneously and it is for this reason that the product is called "precured". He explained that beause of the tread portion on the product, it is not covered by the definition of "sheets' as appearing in Item 16A(2). He submitted that it is the final form in which the goods are cleared, which is relevant for purposes of determining the classification of the goods, and the fact that the product is 3-dimensional in character, should not make it a plate, sheet or strip. 5. The Ld. Counsel cited the ISI Glossary of Terms used in Rubber Industry to prove that vulcanisation and curing are one and the same inasmuch as this document refers to vulcanisation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India v.Ahmedabad Manufacturing Co. -1985 (21) E.L.T. 633 according to which one has to look at the final product as it emerges after the stage of production. Although Shri Sridharan initially claimed that a calendering machine was necessary for making a sheet, when further asked whether there is anything on record to show that any calendering machine was installed in the factory, he withdrew his arguments about calendering. 10. Shri Sridharan also referred to the definition of profile appearing in the publication Moulding of Plastics edited by Norber M. Bikales which was as under : "Profile - The cross-sectional shape of the extrudate; usually reserved for complex shapes. Also, the extrudate with a complex cross-section." 11. The ld. Counsel, thereafter, explained with reference to the Publication "The Applied Science of Rubber" edited byW.J.S. Naunton that in an extruder, a die has to be used to produce the profile desired and submitted that one could use any profile for the desired shape. He also referred to the Dictionary of Rubber in which extrusion is defined as under : "Extrusion - Continuous method of shaping profiles by means of an extruder. The compound is forced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of the authorities cited by him, it would be seen that vulcanization and curing are synonymous terms. He also referred to the 'Sl Glossary of Terms used in the Rubber Industry and submitted that curing could also be partial since terms like "semi-cure" or "part-cure" and "under cure" were also defined in the Glossary. He submitted that the simultaneous use of the expressions "non-curing" and "vulcanized" in the notification support his argument that the exemption was available to a vulcanized rubber product which did not require any further curing. 16. He also cited the judgment of Supreme Court in the case of M. Subbarao v. P.V.K. Krishna Rao (deceased) - A.I.R. 1989 Supreme Court 2187 and referred to the following stand from para 4 :- "In this connection, we may point out that it is well-settled that the Court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately." 17. We have carefully considered the appeal as well as the rival submissions and have perused the case records. A representative sample of the product was tested in the Madras Custom Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardened Precured Tread Rubber and as "Hardened" and under T.I. 68 based only on the strength of the test report of the Chemical Examiner, Customs House, Cochin on the same product produced by Ms. Mantex Industries, Kanjikode West, Palghat, as per Trichur Division, Assistant Collector, C. No. IV/16/134/82, dated 29-1-1983 as contained in para 1 of the notice Show Cause C. No. V/16A/15/1/84 CX. Adj dt. 3-84 of the Collector, Central Excise, Cochin. The extract is enclosed." 20. The questions which fall for our consideration are whether - (a) the product is in the form of plates, sheets and strips; (b) the product is 'unhardened' (c) in terms of exemption Notification 47/76 dated 9-3-1976, as amended, the product is 'vulcanised rubber product, non-curing for tyres and tubes" so as to be eligible for the exemption. 21. We observe that both the Assistant Collector as well as Collector (Appeals) have held that in view of details of the method of manufacture of the product as given by the appellants, themselves, in their Flow Chart where it is stated that after the dumping of the 'Intermix' in the dump mill, it is "sheeted out", the product apparently comes out in the form of sheets. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were 'unhardened' rubber products. We also do not see any reason why the test report of the product, a representative sample of which was drawn from the appellants' own factory, should be discarded and the report of Chemical Examiner, Cochin on a product manufactured by another party (M/s. Mantek Industries, Palghat) should be accepted. Even though the lower authorities have not indicated why they have rejected this plea, it does not stand to reason why we should accept this plea which is devoid of any merit. 23. The appellants have stated in ground No. (8) of their appeal that the same impugned goods were tested by the Rubber Research Institute of India, Kottayam and National Chemical Laboratory, Pune and have been held by them to be 'hardened rubber' and that this fact has not been taken into consideration by Collector (Appeals). Firstly, there is nothing on record to show that the samples sent to these authorities were drawn in the presence of the Central Excise Officers. Therefore, one is unable to accept the reports as relating to the very same goods which are the subject-matter of the dispute. Further, both the reports are cryptic as against the detailed report of Chemical E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly classifiable under Item 16A(2), we now proceed to consider the eligibility of the product for exemption under Notification 47/76-C.E., dated 9-3-1976, as amended. The ld. Counsel, Shri Sridharan has submitted copies of correspondence between the Collector of Central Excise, Cochin and Jaipur with the Board as well as the proceedings of the Tariff Conference and connected papers relating to the classification of the product under the new Central Excise Tariff. All these documents were not available before any of the lower authorities and the appellants' counsel has moved an application for urging additional evidence duly supported by an affidavit. Their plea in the application is that the classification of the very same product in the context of the new Central Excise Tariff Act was considered in a Tariff Conference and subsequently by the Board. Their submission is that the minutes of this North Zone Tariff Conference, Board's circular F. No. 61/89-CX. 3, dated 10-11-1989 and other correspondence submitted in the Paper Book would be relevant and useful for appreciating the issue arising in the present appeal and for deciding the correct classification and the availability of exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff is very different from that in the old tariff. 29. Shri Sridharan has also placed before us a copy of letter No. 3/1/88 Res dated 13-1-1988 from the Rubber Research Institute of India, Kottayam, to the Assistant Collector of Central Excise, Kottayam, the relevant portion of which is as under : "As desired by you, the question of classification of pre-cured tread has been examined by us and our comments are given below: Product is considered vulcanised (cured) when it has been treated chemically with sulphur or any other vulcanising agent to significant level. Pre-cured tread, as the name implies, is already cured and, therefore, can be classified as vulcanised product. When it is used for treading of tyres it is bonded to the tyre carcass using a Cushion Gum compound. During the second curing process only the cushion gum is getting cured and not tread. As far as we understand, the term 'non-curing' as mentioned in notification No. 40.08 means a product which does not require any further curing. Under the above circumstances, we feel that pre-cured tread is eligible for duty exemption under your notification number referred to above......" [Emphasis supplied] 30. When we lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part cure" as well as "under cure" besides the term "cure" and "vulcanisation". In other words, the notification exempts vulcanised rubber products of the non-curing type - meaning those which do not need any further curing. This also fits in with the clarification of the Rubber Research Institute that the product, in question, when used for re-treading a tyre does not require any further curing. It is bonded to the tyre carcass using a cushion gum compound and during this process only the cushion gum is getting cured and not the tread. We consider this explanation to be acceptable because, according to the well-accepted principles of interpretation of statutes, no words of the notification are rendered redundant in placing this interpretation on it and it is interpreted in its ordinary, natural and grammatical sense. This is in conformity with the observations of the Madras High Court in the case of Witco Match Works v. Union of India -1983 (12) E.L.T. 345. 33. In this view of the matter, the "product, in question, is eligible for exemption under Notification 47/76-C.E., dt. 9-3-1976, as amended by Notification 193/80-C.E., dt. 8-12-1980. The orders of the lower authorities are s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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