TMI Blog1998 (12) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification lists dated 4-11-1989 and 6-11-1989. However, the classification list filed by the respondents earlier that is, on 7-4-1989, was still pending. Thereafter the Department approved the original classification list without making any modifications. The contention of the respondents was that the original classification list filed by them effective from 1-4-1989 and 22-9-1989 became effective only from 6-11-1989. They also claimed that as per chapter Note 9 to Chapter 40 of the Central Excise Tariff Act the goods manufactured by them were correctly classifiable under sub-heading 4008.21. 3. By the impugned order the Collector (Appeals) held that there was no notion that classification list can be made effective only prospectively. Though they had filed classification list only on 6-11-1989 appellants had sought it to be effective from 1-4-89. Collector (Appeals) therefore held that if the respondents intended to have the classification list to have effect only from 6-11-1989 they could have availed of the procedure for availing provisional assessment under Rule 9B. He noted that though the classification list claim that it will be effective from 1-4-1989, the same was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is that the impugned goods did not conform to the definition of Plates, Sheets and Strips as defined in Note 9 of Chapter 40, since these items after moulding assumed the shape of rounded edges and the shape of the cross-section became a trapezold. Therefore the articles would more appropriately be classifiable under sub-heading 4016.99 as other articles of vulcanised rubber. On behalf of the respondents the point has been made that the amendment to Chapter Note 9 of Chapter 40 was made only in the Budget of 1990. And therefore the same could not be extended to the classification list filed by the respondents prior to that date. The admitted position is that the question of approval of classification list relates to the period July, 1989 to December, 1989. We find that Note 9 to Chapter 40 as it stood before its amendment in 1990 did not contain the expression except as otherwise provided before the words the expressions plates , sheets , and strips . On a plain reading of Note 9 before its amendment would show that what is covered by the Note are plates, sheets and strips which are of regular geometric shape, whether uncut or cut to rectangular shape, whether printed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) has classified it under the former and allowed the benefit of notification No. 47/76-C.E. but, the department is aggrieved and pleaded for the later heading and in this connection, relied upon Chapter Note 9 to Chapter 40 as it stood before its amendment mentioned above. 11. The whole issue basically boils down to interpretation and application of Chapter Note 9 of Chapter 40 before its amendment in 1990. 12. This note as it stood during the relevant period reads as follows :- 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 strips 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 , profile shapes apply only to such products, whether or not cut to length or surface-worked but not otherwise worked. 13. It is observed that in the above note, two pairs of words are significant - (1) surface-worked , and (2) further worked . The ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Collector s order and reject the department s appeals. Dated : 5-5-1998 Sd/- (S.K. Bhatnagar) Vice President POINT OF DIFFERENCE In view of difference of opinion between Hon ble Member (Judicial) and the Vice President, the matter is submitted to Hon ble President for referring it to a Third Member on the following point :- Whether n view of facts and circumstances of the case, the department s appeals are required to be allowed as observed by Hon ble Member (Judicial) or the appeals are required to be rejected in view of observations and findings of the Vice President. Sd/- (A.C.C. Unni) Member (Judicial) Sd/- (S.K. Bhatnagar) Vice President 18. [Order per : Lajja Ram, Member (T)]. - The issue for consideration in this difference of opinion referred to me is the classification of the rubber products described in the classification lists as Plates, Sheets and Strips. The learned vice-President had agreed with the manufacturers, M/s. Speedways Rubber Company that the same were classifiable under sub-heading No. 4008.21 of the Central Excise Tariff. The learned Member (Judicial) on the other hand had held that the same were classifiable under sub-heading no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , polishing, colouring, embossing, corrugating or even grooving when such grooving is only on surface of the material. In the present case, the respondents have indicated the four stages of their production as under : (i) Natural/synthetic rubber is mixed with certain chemicals including black carbon with the help of mixing mill. (ii) The material so obtained is fed into extruder hopper. Extruder Die is of the required size and shape. (iii) Extruder material is taken to water tank for cooling and over conveyor Belt. (iv) The extruded material is placed in Die and is pressed with the help of Hydraulic press what emerges out is vulcanised grooved material called pre-cured tread. According to the Explanatory Notes to the Harmonized Commodity Description and Coding System at page 579, plates, sheets and strips under Heading Nos. 40.01, 40.02, 40.03, 40.05 and 40.08 had been explained as under : Plates, sheets and strips (headings 40.01, 40.02, 40.03, 40.05 and 40.08) These expressions are defined in Note 9 to this Chapter and include blocks of regular geometric shape-plates, sheets and strips may be surface-worked (printed, embossed, grooved, channelled, r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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