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TMI Blog1998 (9) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 568, classified this product under Heading 40.02 and this judgment has been followed by the Tribunal in the case of Universal Cables and Another reported in 1996 (16) RLT 340. He, therefore, submits that the only issue which remains to be considered by the Tribunal is the grant of consequential relief as a result of classification under the Heading claimed by the importers i.e. 40.02. He submits that in the case of the appellants herein, they fall within the jurisdiction of the Hon ble Bombay High Court which by its judgment in the case of Solar Pesticides P. Ltd. reported in 1992 (57) E.L.T. 201 has held that the bar of unjust enrichment does not apply in cases where the imported goods are not sold as such, but are consumed in the further manufacture of final product, while, the judgment of the Hon ble Madras High Court in the case of Indo Swiss Synthetics has taken a different view; still, since the appellants are within the jurisdiction of the Bombay High Court, the learned Counsel submits that the Bombay High Court judgment should be held to be applicable in their case. Therefore, the appellants should be held to be entitled to the benefit of refund of duty paid. 2. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in its order in the case of Universal Cables Ltd. and Others and Skytone Electricals (India) Others v. Collector of Customs, Bombay (supra) in the case of another similar product viz. synthetic rubber grade TS-430 and TS-530, I agree with the learned Counsel that the product is to be classified under Chapter 40 i.e. sub-heading 40.02 of the CTA and hence set aside the impugned order classifying the product under Chapter 39. 4. Coming to the question of consequential relief available to the appellants by way of refund, as rightly pointed out by the DR, this aspect has not been considered by either of the lower authorities and rightly so because classification was upheld under Chapter 39, and since the Hon ble Supreme Court is seized of the issue of the cases wherein the bar of unjust enrichment would apply, the working out of consequential relief will be governed by the amended provisions of law and by the judgment of the Hon ble Supreme Court which has heard the cases some time in August/September 96 and reserved orders. The appellants undertake to furnish a copy of the order of the Hon ble Supreme Court on the question of unjust enrichment and within a period of two mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.C. as it was not substantiated with the help of any literature or otherwise and he considered the item as a saturated polymer holding that so long definition of any term is available in the statute, no other definition could be relied upon. 7. For any goods to qualify to be artificial rubber, they have to be unsaturated synthetic substance as per Chapter Note 4(a) of Chapter 40. Further, he has observed that the goods chlorosulphonated polyethylene have been specifically directed to be classified in Chapter 39 as per explanatory notes of HSN Page 557. 8. The Collector (Appeals) has also upheld the order of the A.C. observing, inter alia, that the criteria for determining the classification of synthetic rubber has been laid down in Chapter Note 4(a) of Chapter 40 and once the tariff has provided a statutory definition of goods mentioned in the tariff, then the classification is required to be done on merits as per statutory definition and the commercial parlance test could not have application as it could be resorted to only in the absence of any statutory definition. 9. He has further observed that the product is a chlorosulphonated polyethylene which merits classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubber in the Customs Tariff (Chapter Note 4(a) of Chapter 40) and HSN explanatory notes. In this connection, what is significant is that the appellants have not denied or refuted the fact that the material was `Chlorosulphonated Polyethylene whereas referring to various technical literature including Encyclopaedia of Science Chemical Technology by Kirk Othmer, Mcgraw-Hill Encyclopaedia of Scientific Technical Terms, the department has succeeded in showing that `Chlorosulphonated Polyethylene is a saturated product and it has not been denied and cannot be denied that the legislature has excluded saturated products from the definition of `Synthetic Rubber for the purpose of customs and excise tariffs and we are bound by law and when there is such an explicit indication which does not admit of any interpretation and so clear that there is no scope for doubt or dispute in this regard and the appellants have also not denied it, we are bound in duty to follow such a provision as it is irrespective of as to how it is treated in other parts of the world or in common parlance. Hon ble Supreme Court has itself held in the case of Collector of Central Excise v. Fusebase Eltoto Ltd. r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the classification under Chapter 40 and this was confirmed subsequently by the Double Member Bench. In the normal course, a High Court order is binding required to be followed but, it is also well-settled that if a judgment is based on particular circumstances of a case, it is only applicable to those facts and circumstances and in the case of M/s. Universal Cables Ltd. Others v. Collector of Customs, Bombay reported in 1996 (16) RLT 340 (CEGAT-C) which has been cited before us, I had occasion to observe in my portion of the order that we would like to mention that we respectfully agree in its entity that Hypalon-40 was certainly known in the market as commercial rubber. However, insofar as the question of customs classification is concerned, we have to state that all types of synthetic rubber are not covered by Chapter 40 and only those which satisfy the parameters laid down under Chapter 40 and can be considered as synthetic rubber for the purpose of central excise schedule. It is a well known and a well settled principle that where a definition is statutorily provided we have to go by that definition and cannot resort to commercial understanding or common parlance. In the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pter 40 and include them in Chapter 39 by virtue of Chapter notes of Chapter 40 read with those of Chapter 39; and, HSN which specifically mentions modified polymers of polyethylene and cites the example of chlorosulphonated polyethylene in its heading note under 39.01. Ours is a tariff which heavily banks on HSN and now the Hon ble Supreme Court has itself recognised it as a useful guide. Therefore, we have to be guided accordingly. 13. The Hon ble Supreme Court has also held in the case of Collector of Central Excise v. Krishna Carbon Paper Co. reported in 1988 (37) E.L.T. 480 (S.C.) that where no definition is provided in the statute itself, the correct guide appears to be the trade meaning. In other words, where a statutory definition is provided, it has to prevail over common trade parlance. It is this ratio which has been applied and followed in innumerable cases and the Tribunal itself has, for instance, observed to this effect in the case of Sharpmax Engineers v. Collector of Central Excise, Rajkot reported in 1994 (73) E.L.T. 134 (T) stating clearly that statutory definition as per section note, chapter note etc. prevails over trade and commercial understanding. 14. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fference of opinion, it would be more appropriate to refer the matter to a Larger Bench ?" Sd/- (Jyoti Balasundaram) Member (J) Dated 27-3-1998 Sd/- (S.K. Bhatnagar) Vice President Dated 21-3-1998 THIRD MEMBER ON REFERENCE 20. [Order per : P.C. Jain, Member (T)]. - Points of difference between ld. Vice President and Judicial Member is already set out above. 21. Question involved herein is whether hypalon-40 a branded product, is synthetic rubber falling under Chapter 40 or a synthetic polymer resin falling under Chapter 39 of the Schedule to CETA, 1985. 22. Classification of this very product has been considered and decided as synthetic `rubber under Calcutta High Court s D.B. Judgment in the case of National Insulated Cable Co. [1994 (74) E.L.T. 568 (Cal.)] in favour of the assessee therein. While deciding that controversy, the High Court had taken into account Chapter Note 4(a) of Chapter 40 of the tariff on which alone reliance has been placed by the authorities below and the ld. Vice President in their orders. 23. This question came to be considered again by the Tribunal in the matter of Universal Cables Ltd. Its judgment is reported in 1996 (16) RLT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of both National Insulated Universal Cables, there is a full-fledged discussion, as to why, despite the statutory definition of synthetic rubber being an unsaturated polymer as one of the characteristics in Chapter Note 4(a) of Chapter 40 of the tariff, not having been satisfied in respect of the instant product (Hypalon 40), it is still to be classified under Chapter 40. 29. In this connection, para 10 of 1994 (74) E.L.T. 578 is apposite. This para, among others, has been relied upon by the Tribunal in Universal Cables [see para 12 of 1996 (16) RLT 340]. I need not burden this opinion by reproducing relevant extracts from the aforesaid two judgments. 30. It is a well-settled position that if there is High Court s judgment, directly on the point, and there is no contrary judgment of any other High Court, that solitary judgment of a High Court is binding on this Tribunal. 31. I am, therefore, clearly of the view that the controversy on classification involved in this matter stands settled in favour of the appellant by the National Insulated (Cal - D.B.) and Universal Cables (Tribunal) (supra). It is futile to raise this controversy again and again. It may be that the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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