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TMI Blog1992 (8) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... er chappals. The appeal filed by the respondents was allowed by the Collector. Hence, the Department is in appeal before us. 2. The goods imported are described in the Bill of Entry as EVA Unit Soles. The claim of the Department is that these items are covered by Item 473 of the Appendix 3 part A by virtue of the amendment of the Policy dated 13-11-1986 whereas the respondents claim that these are excluded from Appendix 3 part A and therefore, are covered under OGL. 3. The Item 473 of Appendix 3 part A before amendment reads as follows :- Appendix 3 Part A-item 473 Components of footwear excluding the following: (i) Unit Soles; (ii) ........ After the amendment by public notice No. 130-ITC (PN)/85-88 dated 13-11-1986, it reads as follows: ltemNo.6 135 Appendix 3 Part The description of this sub-entry shall be A Entry No. 473 amended as under : sub-entry No. (1) (i) Unit soles/Cut Soles from Leather." 4. According to the respondents, Item 473 excluded Unit Soles of all other varieties as Unit Soles are separated by, ...........therefore leather is applicable to cut soles and not to unit soles". In support of his contention, Shri Kunnikrishnan relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Lokash Chemical Works v. M.S. Mehta, Collector of Customs (Preventive) - 1981 (8) E.L.T. 235. He submitted that in view of the above, clarification issued by the Import Export Control authorities is binding on them. 5. Shri Nair appearing for the Department submitted that under Para 124 any clarification issued by the JCCI E is binding provided the clarification is obtained by the Customs Authorities. Since in the present case, the respondent obtained the clarification it is not in accordance with para 124 27(2) of the Imports Exports Policy Procedure. Therefore, it is not binding on the customs authorities. 6. Item 473 Appendix 3 Part A before amendment excluded all unit soles irrespective of the material with which they are made. After amendment in addition to Unit Soles , they have added cut soles from leather . After the amendment, the entry reads Unit Soles/Cut Soles from Leather. If the intention of the Policy makers is to exclude unit soles of leather only, nothing prevented them from saying Unit Soles of Leather and Cut Soles of Leather. The very fact that they have retained the original entry namely, unit soles and specifically mentioned cut soles of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Table, from the whole of the duty of Excise leviable thereon under section 3 of the Central Excises and Salt Act, 1944 (1 of 1944), subject to the intended use or the conditions, if any, laid down in the corresponding entry in column (4) of the said table. THE TABLE Sl. No. Sub- heading No Description of goods Intended use/ con-. Dition (1) (2) (3) (4) 1. 6401.9 (i) ........ (ii) ...... (iii) Soles specially made and dearly recognisable as being designed for sponge rubber chappals." 8. The main contention of Shri Nair is that the goods imported are made of plastics. Therefore, they cannot be treated as clearly recognisable as being designed for sponge rubber chappals. He relied on the meaning of rubber sponge in Condensed Chemical Dictionary, 10th Edition. Rubber sponge (foam rubber; cellular rubber) A flexible foam produced by beating air into heat-sensitized latex, with subsequent vulcanization, or by incorporating ammonium carbonate or sodium bicarbonate into a strongly masticated and highly accelerated rubber mix, rubber, synthetic. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bber Chappals, they are exempt. Secondly accepting that only Sponge Rubber Soles alone can be designed for sponge rubber chappals, we may refer to the Dictionary meaning and also how they are treated in common parlance. From a reading of the definitions of the rubber synthetic from the Condensed Chemical Dictionary, it is clear that rubber sponge is distinct from rubber synthetic. Rubber sponge is made from natural rubber latex whereas the rubber synthetic is a man-made product. An elastomer is a man-made product having the properties of natural rubber. Therefore, an elastomer cannot be treated as a rubber sponge in the light of the meanings given in the Condensed Chemical Dictionary. However, according to common parlance, there appears to be no distinction drawn between the sponge rubber and synthetic rubber. The same is supported by the materials in the handbook which says that sponge rubbers are not made of natural rubber but are produced from synthetic rubbers or plastics. Applying the common parlance test, though sponge rubber is different from synthetic rubber namely; an elastomer since the trade understood the synthetic rubber as sponge rubber, we are of the view that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... footwear only on the basis of material of which these are made; while sub-item (ii) of the said sl. no. exempts some component parts of footwear made of wood or leather, sub-item (iii) exempts soles for rubber chappals. In the circumstances, to give a common parlance meaning to the expression (sponge rubber chappals) to induce chappals having soles of plastic material also would be improper......." 13. While examining the terms of the exemption, it is notified that it is available to - (a) soles specially made; and (b) clearly recognisable as being designed for sponge rubber chappals (Emphasis supplied) 14. A chappal consists of two parts-the sole and the strap which is attached to the sole. The names rubber chappals , leather chappals , etc. are given to chappals with reference to the material of which the sole is made because, in a chappal, unlike in a shoe, it is the sole which gives to it its name, distinguishing character and even accounts for its major cost. Once this is understood, there should be no difficulty in interpreting the expression sponge rubber chappals because the plain meaning would be chappals of sponge rubber soles. This being so, plastic sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember on Reference]. - The learned Departmental Representative referred to the submissions before the Bench already made to say that according to the Textual Authorities sponge rubber is distinct from ethylene-vinyl acetate co-polymer (EVA) which is a plastic material. Sponge rubber is produced by beating air into unvulcanised latex, or by incorporating a gas-producing ingredient into a strongly masticated rubber stock. Shri J.N. Nair contended that EVA being plastic material is not covered by the expression sponge rubber. The Notification No. 49/86 exempts soles specially made and clearly recognisable as being designed for sponge rubber chappals consisting of only the sole and straps and it is known by the material of which the sole is made. The imported goods are plastic material for which the notification does not apply. Shri K.V. Kunnikrishnan, the learned Consultant appearing for the applicants contended that elastomer is having all the qualities of rubber and is in the nature of synthetic rubber. There is nothing to indicate according to the learned Consultant that EVA foam is not rubber. The learned Consultant also drew attention to the evidence by way of certain advertising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption provision are to be invoked at different stages of interpreting it. When the question is whether the subject falls in the notification or in the exemption clause then it being in the nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play is to be given to it and it calls for a wider and liberal construction". In this case, the notification when read with Explanation I is clearly meant to exempt soles for sponge rubber chappals where chappals are defined to mean soles to be attached to the foot with thongs. When such is the wording of the notification, it may be inappropriate to widen its coverage to soles for plastic chappals by having recourse to the trade parlance. In the result, it is held that EVA Unit soles imported in this case will not qualify for exemption under Notification No. 49/86. In this view of the matter, the order proposed by the learned Member (T) is concurred with. 21. The papers are returned to the Registry of Special Bench D for being listed before the Bench for issuing the final order. FINAL ORDER In the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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