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TMI Blog1995 (7) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... ctured by [them] under Heading 84.31 as parts of excavators. The Central Excise department was, however, of the view that goods should be classified under Heading 4009.92 and the Assistant Collector of Central Excise accordingly passed an adjudication order confirming this classification and demanding differential duty on the goods already cleared by the company. The company s appeal was rejected by the Collector of Central Excise (Appeals), Bangalore who confirmed the view of the department. The company has now come in appeal before this Tribunal. 3. Shri C. Natarajan, Advocate, stated at the outset that he would not press the claim made in the memorandum of appeal that the hose assemblies were made out of hard rubber. He was instructed to say that the hose assemblies were made out of vulcanised rubber other than hard rubber. He argued that hose assemblies are specially designed for use with excavators. For this purpose they have to be of specific size and to be capable of withstanding required pressure. They were not capable of use elsewhere as such hose assemblies. Since the excavators could not function without these assemblies, they had to be considered as parts of excavator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes to HSN made it clear at page 591 that tubes, pipes etc. of rubber, would remain as Chapter 40 even if provided with fittings and, cut to size and shape. He pointed out that the actual finding in the Aerolex s case had not been set aside by the Supreme Court which had remanded the matter on the ground that some evidence had not been considered, and stated that the Track Parts decision had already settled the matter. 5. This Tribunal had, in the Track Parts case considered the classification of rubber hose in great detail. Paragraphs 9 and 10 of that order are reproduced below : 9. Heading 40.09, sub-heading 4009.50 would appear on first blush to be quite specific for hoses of vulcanised rubber other than hard rubber with fittings. However, we have to consider the effect of Chapter Note 2(d) to Chapter 40 which eccludes mechanical or electrical appliances or parts thereof of Section XVI (including electrical goods of all kinds) of hard rubber. The present hose assemblies are admittedly not made of hard rubber. But that, however, by itself does not clinch the issue. We have to see whether the goods fall within Section XVI. At this stage, we may note that Shri Sunder Rajan h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. It is not the Revenue s case that the present goods fall under Heading 40.16. They have been classified under Heading 40.09, sub-heading 4009.50. However, this fact alone would not mean that the present goods fall under Section XVI. In this connection, it is also to be noted that the reliance placed by Shri Sunder Rajan on Section Note 2(b) in support of the appellant s claim for classification of the goods in Chapter 84 is, in our opinion, misplaced for the reason that the provisions of Section Note 2(b) are, as the opening phrase of that note shows, subject to Note (1) to this section . And, according to Section Note 1(a) there are certain specific exclusions including goods falling under Heading 40.16. This, however, would not lead to the inevitable result that articles of a kind used in machinery but which do not fall under Heading 40.16 would be classifiable within Section XVI. This is for the reason that Heading 40.09, sub-heading 4009.50 specifically covers hoses of vulcanised rubber other than hard rubber. (There is no dispute that the said Hoses are made of vulcanised rubber other than hard rubber with fittings). What is excluded from the purview of Chapter 40 by Chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the same excavator, different types and sizes of assembly would require for different functions without their being interchangeable. According to him, this establishes that the goods were parts; once this is accepted, the goods would necessarily fall under Chapter XVI. 9. We are not persuaded by this argument. It cannot be denied that the hose assemblies are parts of the excavators, as commercially understood or in engineering or indeed common parlance, since the excavator is not complete and cannot be used without them. But a leap from this fact to the conclusion that these are parts classifiable under Chapter 84 is not justified. An item may be a part of a machine, in the sense that the machine would be incomplete without it, and still be classifiable elsewhere than under Section XVI. This section excludes from its scope, various articles which are clearly parts of machinery or other goods falling under that section - for example, parts of general use, base metal, plastic, interchangeable tools of Heading 82.07. The structure of the tariff, and the Harmonised Code on which it is based, does not always contemplate classification of parts of a machine or an article with tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds in a statute must be considered in an ordinary sense and intention of the legislature must be found in the words used in the statute. This is what we have endeavoured to do. The decision in AIR 34 1957 Privy Council, 1994, relied upon is that in the event of conflict between two provisions of statute, the latter must prevail as it speaks the last intention of the makers . The advocate pointed out that this principle had been incorporated in the Interpretative [Rule] 3(c) that heading which occurs last must be preferred. The recourse to this sub-rule however is only to be had as a last resort, as that sub-rule itself provides that it would apply where the goods cannot be classified by the principles in sub-rule 3(a) or (c). We have not found it necessary to go beyond sub-rule 3(a). We are unable to see the relevance of the decision in AIR 1961 SC 838. 10. The appeal therefore, fails and the order of the Collector (Appeals) is confirmed. 11. We now turn to the other appeal by the Collector of Central Excise in which M/s. Aerolex Hose (P) Ltd. is the respondent. The earlier order of the Tribunal disposing of this appeal [reported in 1989 (39) E.L.T. 681] has been set aside by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed on 30-10-1986 and after the order-in-appeal on 25-10-1987 and even after the appeal itself was filed before the Tribunal. The respondent had not claimed at any stage before the Assistant Collector or the Collector (Appeals) that the hose assemblies were made of hardened rubber. It is therefore, not possible to agree that the document establishes that the goods under consideration were made of hard rubber. We also note that expression used in the Note 1(d) to Chapter 40 is hard rubber whereas the goods have been described in the certificate as vulcanised rubber (hardened). The respondent therefore, has not established that the rubber in question has been hardened sufficiently to be considered as hardened rubber, there being difference in degrees of hardness. On these points being put to the advocate of the respondent, he had nothing to say. 11. We are thus unable to agree the goods manufactured by the respondent were made of hard rubber. This being the case, the discussions in the earlier paragraphs of this order would apply with equal force to the goods in the present case. The goods are therefore, classifiable under sub-heading 4009.92. The order of the Collector (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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