TMI Blog1988 (1) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... ely and the material inside is allowed to expand to the shape of the mould for a required time. Then these seat saddles are removed from the moulds and are subject to compression and after compression, these are kept in racks and allowed for cooling. After inspection of these goods they are stored in a bonded warehouse. In the case of Bajaj seat saddle, a tapping cloth is attached to the seat saddle, a tapping cloth is attached to the seat and the edges of bottom of the seat. In the case of Delux seat a steel wire is inserted inside." This process of manufacture is known as single shot injection moulding process, unlike the process used for manufacture of polyurethane foam in the form of slabs and blocks. Sometime, the seats are cleared in the form of metal base attached to the seat which is inserted in the mould at the time of manufacture and gets attached to polyurethane foam seat manufactured in the shape of the mould. The original authority has classified the seat saddles manufactured in the above manner as articles of Polyurethane foam falling under Tariff Item 15A(4). The original authority was of the view that since the use of a commodity is not, spelt out in Tariff Item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A. Brydson. He has drawn attention to the fact that the product is nothing but flexible polyurethane foam and since it is clearly an article, therefore, it would be covered by the Tariff Item 15A(4). He has also placed great reliance on Tribunal s decision in the case of Collector of Central Excise, Madras v. Apex Rubber (P) Ltd. [1987 (32) E.L.T. 593 (Tri.) = 1988 (11) E.T.R 157 = 1987 (14) ECC-T379]. He has stated that in that case too, the question was whether bus seats and scooter seats of latex foam sponge were covered by the Tariff Item 16A(1) or did they fall under Tariff Item 68. It has been held therein by the Tribunal as follows :- In the present case, though the latex foam sponge has undoubtedly acquired the shape of bus seats etc., it has not, unlike in the case of glass mirror, undergone such a complete or considerable transformation that the moulded product no longer is identifiable as latex foam sponge. It continues to be sponge moulded into a particular desired shape. And, there was no specific item, more specific than latex foam sponge", to cover the moulded goods. If the bus seats, etc., had been cut out of bigger pieces of latex foam sponge to customer s spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily, torch is not described by the name of the material used in the tube in which the device of torch is housed. The commodity known advertised, sold and offered in the market is torch. Prefix plastic merely describes the quality of torch as distinguished from other type of torches. It is not sold primarily as plastic tube . It has been emphasized by the learned advocate for the respondent company that in the instant case too, the product is known as saddles. It is available in the shops dealing in the parts of motorvehicles. These saddles are not normally available in the shops where articles of polyurethane foam like matresses, cushions, pillows, etc., are available. The seats are also not made wholly of polyurethane foam as has been described in the process of manufacture. They are either attached to metal base or with some cloth on the edges. Distinguishing the judgment of the Tribunal reported in 1987 (32) E.L.T. 593 (Tri.) = 1988 (11) E.T.R. 157 = 1987 (14) ECC T379 mentioned supra, the learned advocate has stressed that the latex foam sponge seat either of bus or scooter, was held to be as latex foam itself and not as article as is apparent from para 15 of the order by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on Supreme Court s judgment of Siemens Engineering Manufacturing Company Ltd. v. Union of India and others [1976 - Supplementary Supreme Court Reports 489] wherein it was held that pot motors fell within the description of Customs Tariff Item 72(3) since they were specially designed for use in spinning machines for manufacturing thread and that they were indubitably essential for the working of the spinning machine and were incapable of use for any other purposes. Therefore, pot motors were clearly component parts of the Rayon spinning machines. He has again emphasized that in the case of Kirloskar Filters (Pvt.) Ltd. [1985 (19) E.L.T. 453] predominant use has been held as an appropriate criterion for classifying a product. Leave apart the predominant use, it s only use is as saddle for scooter/motorcycle. The product should be classified as parts of motor vehicle not otherwise specified and therefore, fall under Tariff Item 68. 5. We have carefully considered the pleas advanced from both sides. There are two competing entries for the product in question. The department contends that classification should be under Tariff Item 15A(4) whereas the respondent company (assessee) con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of products under a taxation tariff, the product in question is saddle or a seat for a scooter/motorcycle in the mind of the trader and the consumer as urged by the learned advocate. It is not as an article of polyurethane foam which a consumer buys. When a consumer buys this seat or saddle, he buys it because it performs a specific function for him. The judgments relied upon by the learned advocate particularly 1987 (65) S.T.C. 41 are very appropriate in the instant case. The test of commercial parlance and now this test should be applied has been well set out in para 8 of Supreme Court s judgment in the case of Atul Glass; relevant portion thereof has already been extracted above. It is the functional character of an article which identifies it in the mind of a person. The functional character of the product in the instant case as stressed by the learned advocate for the respondent is truly that of a seat/saddle in the instant case. The product as it emerges is a seat or saddle which can be straightaway fitted to a scooter/motor-cycle. It does not require further processing as in the case of latex foam sponge seats in the case of Apex Rubber Ltd. mentioned supra. Taking the over ..... 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