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TMI Blog2000 (12) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... ed appeals before the Collector of Central Excise (Appeals), Bombay seeking classification under sub-heading 86.07 without the benefit of any exemption. The lower appellate authority upheld the orders passed by the Assistant Collector, on an interpretation of the Chapter Notes to Chapter 86, Chapter 39 and Section XV and Section XVII of the Central Excise Tariff. Hence this appeal by the Revenue. 2. We have heard Shri J.M. Sharma, learned DR and Shri Nitin Mehta, learned Advocate. 3. The Revenue seeks classification of the disputed item under Heading 86.07 of the CETA, 1985 which covers "parts of railway or tramway locomotives or rolling stock". The Revenue relies upon HSN Explanatory Notes to Heading 86.07 which state that parts of railway of tramway locomotives or rolling stock include parts of brake gear including shoes, cylinders, levers, etc. The Revenue challenges the finding of the lower appellate authority that the bushes are like washers as both are used as a packing i.e. cushion to relieve friction, etc., contending that as per the Dictionary of Scientific and Technical Terms by David Lapeads (1974 Edition), "Bush" means "to line with a bushing as an axle bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same dictionary at page 1385 as "a flat ring of rubber, metal, leather, etc. inserted at a joint to tighten it and prevent leakage. The respondents have explained that bushes manufactured by them are used for the purpose of avoiding wear and tear to the main body due to friction and their contention is supported by a certificate issued by the Ministry of Railways to M/s. Synthetic Moulders Ltd. who are manufacturers of the brake gear bushes (which the Dept. has not disputed as being identical to the brake gear bushes manufactured by the respondents herein) certifying that the bushes are provided between the steel housing and steel pins of the brake rigging and provide a lining of non-metallic surface as washers and are used in the brake gear to improve the life and reduce the maintenance. Since the respondents have been able to establish that the bushes in dispute have similar application as washers, Note 2 (a) of Section XVII of the CET is attracted and hence they are excluded from the coverage of Chapter 86 and fall for classification under Chapter 39 as their constituent material is plastics. We also note that several classification lists filed by the respondents claiming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing prevented the legislature to either include bushes here or in Note (2) to Section XV. 11. Furthermore, bushes are neither technically identical or similar to washers nor in the commerce and trade, they are looked upon as the same or similar items. This is evident from the fact that nobody will give you washers if you ask for bushes and vice versa. Function and use wise, one of the main function of bushes is to reduce friction and give support (whereas one of the principal use of washers is to tighten joints and prevent leakage). Hence, the point for our consideration is as to whether such bushes which have been specifically designed for use in the braking system of the railways can be considered as parts suitable for use solely or principally with the railway rolling stock. It is significant that in HSN, after Heading 8607.19, there is a single dash sub-heading mentioning "brakes and parts thereof"; And, once they are identifiable as such, it is immaterial of what material they are made up of. 12. Again, once they are found to be classifiable under a specific chapter heading on the basis of their function and use (and the material of which made is immaterial), they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied that the main function of such annular discs or flattened rings of metal, leather or other material is to tighten and prevent leakage. 18. Whenever there are articles which are found in different shapes and sizes and can be used to perform more than one function some of which are common to both of them, it is the principle characteristic or essential feature and the most common use which is adopted as a criterion for distinguishing them. A perusal of the definitions, examples and uses given in various dictionaries and technical literature shows that bushes are more akin to bearings (and not washers) and the two are distinguishable with reference to their main function and common use that of anti-friction and supportive function in the case of bushes and bearings whereas that of tightening and preventing leakage in the case of washers and gaskets. 19. As mentioned earlier, it is also common knowledge that bushes (or bush bearings) are distinct and treated distinctly from washers by the common man and those who normally deal with it in the normal course of trade and industry and the two terms are not used interchangeably. 20. In the HSN and the Central excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above items are put, namely packing or sealing, with which we are concerned; And, in any case, classification under Heading 84.64 was not agreed to in that case, although it covered gaskets, on the ground that the item imported was made out of the plastic and not out of materials of the types mentioned in that heading. 24. Before parting, I may mention that a reference has also been made to a letter signed by someone on behalf of Director General (Carriage) to M/s. Synthetic Moulders Ltd. on 16/18-5-1990 regarding manufacture and supply of different sizes of nylon 'bushes' for being used as 'washers'. This is not easily understandable. In my opinion, this letter is of little evidentiary value and does not tilt the scale in favour of the respondents. Apart from the fact that it is a letter from one to another party and does not relate to the products of the respondents in the present case, we cannot rely upon a mere opinion of some third person whose identity is not known. We do not even know whether the person signing the letter is merely an administrative/clerical official or an expert and what is the basis of his opinion or intention. Further, we are governed by the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al surfaces, does not leak liquid or gas. 17. It is true that according to "The Shorter Oxford English Dictionary on Historical Principles, Volume - II" 'washer' is "a perforated annular disc or flattened ring of metal, leather, etc., placed between two surfaces subject to rotative friction, to relieve friction and prevent lateral motion and unsteadiness" but, it can hardly be denied that the main function of such annular discs or flattened rings of metal, leather or other material is to tighten and prevent leakage." 29. He submitted that item in Question is not hit by Section Note 2 of Section XVII. This Section note excludes only those parts and accessories which are either specified therein or parts of general use as defined in Note 2 of Section XV of base metal (Section XV) or similar goods of plastic (Chapter 39). He said that bushes are neither specified under any of the clause from (a) to (i) under this Section note nor can be considered as parts of general use of the type defined in Section Note 2 of Section XV. He said that besides this, this was the view expressed by Vice President in his proposed order as well as in the - Final Order 931/99-B, dated 25-8-1999 in A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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