V.P. Gulati, Member (T)
1. The issue in the appeal relates to classification of the goods which have been described as wiper rubber, scrapper rubber, skirt rubber and rubber sheet (vulcanised). The learned lower appellate authority has ordered classification of the same under Tariff Heading 4008. The Revenue has sought for classification of the goods under Heading 4016.19. The two competing tariff entries are reproduced below for convenience of reference:-
40.08 Plates, blocks, sheets, strips, rods and profile shapes, of vulcanised rubber other than hardened rubber. 4008.29 Other 40.16 Other Articles of vulcanised rubber other than hardened rubber. 4016.19 Other
2. The learned DR has urged that the goods had been supplied cut to certain required size and therefore by reason of the same having been cut to specific size these would fall out of the purview of Tariff Heading 4008 read with Chapter Note 9C. In the grounds of appeal, the following have been urged :-
(i) Collector (Appeals) has failed to take into consideration the fact that as per Section Note 9 of Chapter 40 for classification of the products under Chapter 4008, the goods must be uncut or simply cut to rectangular shape while classifying the subject goods under Chapter 4008.29 of Central Excise Tariff, 1985. Whereas these goods are not simply cut, but these were specifically cut as per customer’s requirement they go outside the scope of the Heading 4008. Thus they are correctly classifiable only under Chapter 4016.90 as articles of materials of Heading 4008 of Central Excise Tariff, 1985. Actually Heading No. 4008 covers the goods produced enbloc so that either they remain uncut or little trimmings on the sides for removing the excess rubber bulging there and they do not acquire the nomenclature of articles of rubber. On the other hand when these products are given specific shape rectangular or otherwise, these are called articles of rubber. As for example in this case these are called wiper rubber, scrapper rubber etc. So they are more appropriately and specifically covered under Chapter Heading 4016.90.
(ii) Collector (Appeals) has wrongly come to the conclusion that all the products mentioned above are cut only to rectangular shape by examining the samples of wiper rubber and rubber sheet alone. Even at the time of examining these two samples, no representative from the jurisdiction-al Central Excise Division was present. Hence, the Collector (Appeals)’s order based on wrong conclusion as explained above is liable to be set aside.
The learned DR reiterated the grounds of appeal.
3. We observe that the lower authority has analysed the position with reference to Chapter 9 and has held as under in his order :
“Appellants, as seen from the impugned order, have filed classification list from time to time declaring the impugned goods as strips and sheets and sought classification under 4000.29, which was duly approved. However, the Lower Authority appears to have reclassified the goods under sub-heading 4016.19 as articles or rubber on the simple ground that the appellants had declared the specific sizes of the products. In reclassifying the goods, the lower authority appears to have grossly misunderstood the Section Note 9 under Chapter 40. As per the Section Note 9, the expressions ‘plates’, ‘sheets’, and ‘strips’ apply to plates, sheets and strip uncut or simply cut to rectangular 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. The plain meaning is that the sheets and strips if they are only cut to rectangular shape, they are still to be treated as falling under sub-heading 4008 only. Such strips or sheets are excluded from the purview of sub-heading only if they are further worked or cut to specific shapes other than rectangular (including square). By examination of the samples of wiper rubber and rubber sheet produced during personal hearing on 21-11-1989 reveal that they were only cut to rectangular shape. The mere fact that they were cut to specific sizes do not alter their basic character as strips or sheets. Even if these strips and sheets are directly used or have acquired the character or articles, they are still to be considered only as sheets and strips in view of Section Note 9 of Chapter 40 referred to above.
4. The learned Counsel for the respondents pleaded that goods supplied by them are rectangular in shape. The goods have been supplied by them to required size. He pleaded that the goods have not been cut to any particular shape nor these have been further worked. He pleaded that these items will go out of the purview of Tariff Heading 4008 read with Chapter Note 9. He pleaded that the respondents had only supplied the goods in the dimensions as ordered and there was no question of cutting the goods or shaping the same. There is no allegation that these goods have been further worked.
5. We have considered the pleas made by both the sides. We observe that there is no dispute that the goods were in rectangular shape. The only ground urged is that since these were cut to specific sizes these could be taken to have been cut to a definite shape and for that reason, therefore, these will go out of the purview of Tariff Entry 4008. We observe that Chapter Note 9 makes it clear that so long as the goods are in rectangular shape these will continue to fall under Heading 4008, unless it can be shown that these had been cut to definite shape or further worked and these will continue to fall within the purview of Heading 4008. In the above view of the matter, we agree with the reasoning of the learned CCE(A) and hold that his order is sustainable in law. We hold, that there is no force in the plea of the Revenue and we dismiss the appeal.
6. The cross objection filed is in the nature of comments and the same is dismissed as misconceived in law.