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TMI Blog1987 (1) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... alon is manufactured by only one concern in the world viz. DU PONT DE NEMOURS INTERNATIONAL S.A. in the United States of America and are sold by them throughout the world as 'Synthetic Rubber' and according to the petitioners Hypalon-40 is also known in the market and among commercial people the world over including India, as a variety of Synthetic Rubber. 3. The petitioners imported certain quantities of Hypalon-40, but the Customs authorities insisted that the material so imported, was Synthetic Resin and not Synthetic Rubber as claimed by the petitioners and demanded Customs duty at higher rates under Chapter 39 of the Customs Tariff Act, 1975 instead of assessing the same as Synthetic Rubber under Chapter 40 of the said Act. The petitioners, however, got the disputed consignments released from the Customs authorities under two different interim orders passed by this Court. 4. In the instant Rules, the petitioners have asked for a declaration that the bags of Hypalon-40 imported by them are assessable as Synthetic Rubber under Item No. 40.01/04 of the customs Tariff Act, 1975 and also for a writ in the nature of Mandamas directing the respondents to assess the said bags of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are 4 commercial types of Hypalon viz. 20,30,40 and 45. They are stated to be fully saturated and are cured by the reaction of chlorine and sulphonyl chloride groups with poly basic metal oxides. Curing involved the Hydrolysis of the sulphonyl chloride groups to the corresponding sulphonic acid which then reacts with the metal oxide. A small amount of water is essential for curing. Since Hypalon is fully saturated it does not satisfy the definition of syn. rubber as laid down at note 4(a) of Chapter 40 of CTA '75. Hypalon is as such saturated and that unsaturation result's during curing process. For classification of Hypalon, the goods as they are is to be taken into consideration. In view of the above, Hypalon cannot be considered for classification and assessment under chapter 40 of CTA'75. Therefore, Hypalon is appropriately classifiable under Ch. 39 of CTA'75. In this connection, attention is also invited to the classification of Hypalon (R.T.M.). (Chlorosulphonated polyethylene) under heading 39.02 in the Compendium of Classification Opinions, published by Directorate of Statistics and Intelligence, New Delhi. Sd/- N.Rajagopalan Dy. C.C. 9. The result of testing by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r) like EPDM and duty 1(11B) in respect to functionality and like NBR and CR in oil resistance. 2. Hypalon can be vulcanised by sulphur system and thus can be irreversibly transformed into an elastic and non-thermoplastic substance. Sd/- S.K. De, 1-6-1982 for Head. Rubber Technology Center. Head of the Rubber Technology Center. Indian Institute of Technology Evaluation done by : Kharagpur-271302 Sd/-S.K. Chakraborty 1-6-1982. In this connection, it may be useful to know what the expression 'Synthetic Rubber' is to be taken to apply for under Note 4 to Chapter 40 of the Customs Tariff Act, 1975 and it is as follows :- 4. "In this Chapter, the expression "synthetic rubber" is to be taken to apply for : (a) unsaturated synthetic substances which can be irreversibly transformed into non-thermoplastic substances by vulcanisation with sulphur and which, when so vulcanised as may be (without the addition of any substances such as plasticisers, fillers or reinforcing agents not necessary for the cross-linking) can produce substances which, at a temperature between 18o and 29o will not break on being extended to three times their original length and will return afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated substances, it materially and substantially corresponds with the other qualities as specified in Note 4. On testing, it was found by the Rubber Technology Centre of the IIT that "Hypalon is a Polymer (a new Synthetic Rubber)......... 13. It, therefore, appears that though according to the report of testing by the Customs authorities Hypalon is not Synthetic Rubber, it was not specifically tested to find out whether it was Synthetic Resin covered by Chapter 39 of the Tariff Act. The report concludes that Hypalon is Synthetic Resin since it is not Synthetic Rubber. Since a substance which is not Synthetic Rubber cannot automatically be Synthetic Resin unless found to be so, the report of testing made by the Customs authorities cannot be said to be reliable to this extent and from the said report it cannot be safely concluded that Hypalon is Synthetic Resin. 14. On the other hand, the report of the IIT, on which reliance was placed by the petitioners, at least shows that Hypalon 40 on testing, responded to some of the basic qualities of Synthetic Rubber as given in Note 4 to Chapter 40 of the Customs Tariff Act, 1975, though it is not an unsaturated substance as it should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which this Court was called upon to decide in the instant Rules was whether Hypalon-40 is Synthetic Rubber or Synthetic Resin and since the report of testing by the Customs authorities falls short of the requirement the other report, which is more scientific and more reliable, has been accepted since Hypalon 40 is most akin to Synthetic Rubber though it does not fulfil all the requirements of Note 4 to Chapter 40 of the Tariff Act. 21. Mr. Mitra, the learned Counsel representing the respondents, in this connection drew my attention to some decisions of the Appellate Tribunals where the Tribunals have taken the view that Hypalon-40 is Synthetic Resin and not Synthetic Rubber. But I am afraid, the views so taken by the Appellate Tribunals, are not binding on this Court. 22. Mr. Mitra also referred to an unreported decision of this Court in the Indian Cable Company Ltd. and another v. the Collector of Customs and others, being Matter No. 1702 of 1981, where a learned a single Judge of this Court relying upon the testing report of the Customs authorities has held that Hypalon-40 is Synthetic Resin and not Synthetic Rubber. But since the view which have taken rests on somewhat a di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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