9911796707
TMI Blog1999 (1) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... uce TH 94.01 and 40.08 :- "40.08 Plates, blocks, sheets, strips rodes and profile shapes of vulca- nised rubber other than hardened rubber of cellular rubber. 94.01 Seats (other than those of Heading No. 94.01), whether or not convertible into beds, and parts thereof." 2.2 In order to understand the scope of the said THs, we reproduce the Chapter Note 9 of Chapter 40 as also Chapter Notes 1(a), (h) of Chapter 94 and Note 3 of Chapter 94 :- "9. In Heading Nos. 40.01, 40.02, 40.03, 40.05 and 40.08, the expressions 'plates', 'sheets' and 'strips' apply only to plates, sheets and strip and to blocks of regular geometric shape, uncut or simply cut to rectangular (including square) shape, whether or not having the character of articles and whether or not printed or otherwise surface-worked, but not otherwise cut to shape or further worked. In Heading No. 40.08, the expressions `rods' and `profile shapes' apply only to such products, whether or not cut to length or surface-worked out but not otherwise worked. 1. This does not cover : (a) Pneumatic or water mattresses, pillows or cushions of Chapter 39, 40 or 63; ........................ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Item 34A of the Tariff. The argument that the seats are specially designed for a specific use ultimately cannot decide classification of the unfinished seats at the time of clearance. All the authorities cited by the respondents relate to cases of finished articles which could straightaway be fitted to the appliance or machinery and they do not, therefore, advance the respondents' case for classification of the subject goods as parts and accessories of motor vehicles." (Emphasis supplied by the learned Advocate). 2.5 He further submits that though the said judgments in the case of M.M. Rubber (supra) relate to the old Tariff but they apply with equal force to the present Tariff as well inasmuch as there is no material difference if we consider the Tariff Heading description with the relevant Chapter Notes. In this connection, he submits that TH 40.08 read with Chapter Note 9 makes it very clear that plates, blocks, sheets, etc. of rubber even if cut to shape and size and even if articles of rubber have to be classified under TH 40.08. Relevant extracts from the said Tariff Heading and Note 9 of Chapter 40 have already been set out. 2.6 As against the classificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (31) E.L.T. 1939 (Para 21) (3) 1987 (31) E.L.T. 469 (T) = 1984 ECR 2164 (Para 61) (4) 1985 (22) E.L.T. 487 (Para 35) (5) 1987 (30) E.L.T. 538 (6) 1990 (47) E.L.T. 449 2.9 In fact the learned Advocate pleaded to the extent that even the modification of classification lists is bad in law inasmuch as there has been no contrary trade/technical opinion, that there is no judgment of any Court holding to the contrary, that no new manufacturing process has been started by the appellants so as to call for any change in classifications. In other words, he meant to say that there is no change in legal position as well as so as to call for modification of the classification list. For this proposition, he relies on 1981 (8) E.L.T. 328 (Delhi) wherein it had been held that classification list can only be changed for cogent reason. 2.10 It has also been pointed out by the learned Advocate that in other Commissionerates the product under consideration has been classified under TH 40.08. He submits that discrimination in interpreting Central Excise Tariff is impermissible. He relies for his proposition on :- (1) 1990 (48) E.L.T. 50 (T) = 1990 (15) ETR 204 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision to change the classification from 40.08 to 94.01 or 87.14 (for scooter seats), as the case may be, in respect of the goods under consideration could be effective only from 23-10-1990. Any demand pertaining to the period prior to 23-10-1990, he submits, is wrong and not sustainable. 3.1 Rebutting the contention of the learned Advocate, Shri A.K. Jain, learned SDR reiterated the judgment of the Tribunal in the case of J.K. Foam, supra as already set out above, on merits of the classification. As regards the limitation, learned SDR, Shri Agarwal points out that the Apex Court's judgment in the case of H.M. Bags, (supra) is not at all relevant inasmuch as the show cause notice had been issued before the consideration of the matter in the Tariff Conference. It was a suo moto action undertaken by the Commissioner which incidentally gets supported by the decision of the Tariff Conference of the Collectors. The show cause notices having been issued within the period of six months vis-a-vis the periods of demand of duty, the show cause notices cannot be challenged on limitation. He submits, as regards the plea of the learned Advocate that a classification has to be given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar rubber and that it is in profile shape. Reliance placed on a latter dated 23/27-10-1990 from the office of the Deputy Manager, U.P. State Transport Corporation, Kanpur to the effect that for manufacturing bus seat apart from specific size of seat cushion, plyboard, rexin, frame of angle or pipe is also used. After assembling all these a bus seat comes into existence. We are, therefore, of the view that the product, as is cleared by the appellants in the form of a 'cushion' of bus seat of cellular rubber would not fall TH 94.01. Support for this can also be drawn from Note 1(a) of Chapter 94, as already set out above, which excludes specifically cushions falling, inter alia, under Chapter 40 from the scope of Chapter 94. Further, as rightly pointed out by the learned Advocate for the appellants, Tribunal's judgment in J.K. Foam does not take into account the earlier judgments of the Tribunal in the case of M.M. Rubber. It will be observed from the said judgment of the Tribunal in M.M. Rubber that a distinction has been drawn between a bus seat and 'foam sponge' as described in T.I. 16A of the earlier CET. The article remains the same i.e. the `cushion' and the cushion has been sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce even before the issue of the said Tariff advice dated 23-10-1990 by the Board. In any case the fact remains, as already stated above, that the Board's letter dated 23-10-1990 makes a change in classification of the aforesaid product for the first time under Heading 94.01. 5.1 We are, therefore, of the view that the decision had been based by the authorities below on the Board's Tariff advice which as ruled by the Apex Court has to apply from the date of its issue. In that view the demands of duty in all the three cases will be barred by time inasmuch as the Tariff advice is applicable from the date of its issue. 5.2 Now remains the question of classification of scooter seats. It is not disputed by the appellants' learned Advocate that scooter seats by the appellants are covered with rexin. They are known in the market as seats of two-wheelers or scooters. Note 1(h) of Chapter 94 excludes articles of TH 87.14. TH 87.14 is described as "parts and accessories of vehicles of THs 87.11 to 87.13". TH 87.11 pertains to motor cycles (including scooter and mopeds) and cycles; TH 87.12 pertains to bicycles and other cycles and TH 87.13 pertains to invalid carriages. The scoote ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
