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CASE NO.: Appeal (civil)  3832-3837 of 1999

PETITIONER: Collector of Central Excise, Kanpur

RESPONDENT: M/s Matador Foam & Ors.

DATE OF JUDGMENT: 05/01/2005

BENCH: S. N. Variava, Dr. AR. Lakshmanan & S. H. Kapadia

JUDGMENT: J U D G M E N T

S. N. VARIAVA, J.

       These Appeals are against the Judgment dated 22nd of January  1999 of the Customs, Excise and Gold (Control) Appellate Tribunal  [CEGAT].         Briefly stated the facts are as follows.         The question involved is whether the goods manufactured by the  Respondents fall under Tariff Item 94.01 or Tariff Item 40.08.  It is an  admitted position that the Respondents manufactured goods made out  of vulcanised rubber, other than hardened rubber, and their goods are  cut to the shape of seats of motor vehicles or two wheelers.  The  Respondents had filed a classification list showing the products under  Tariff Heading 40.08.  This had been approved.  However, a show- cause notice dated 17th May 1990 was issued by the Assistant  Commissioner raising a demand for the differential duty on the ground  that the products should correctly be classified under Tariff Item  94.01.  After giving a personal hearing, the Assistant Commissioner  confirmed the demand.  Thereafter, three further show-cause notices  dated 31st May 1990, 1st May 1990 and 31st May 1990 respectively  were issued to the Respondents calling upon them to show-cause as to  why the benefit wrongly availed of them under Notification No. 175 of  1986 dated 1st March 1986 be not cancelled. The Respondents were  called upon to pay duty.  After hearing the Respondents, by Orders  dated 13th March 1991, it was held that the Respondents were not  entitled to exemption.  They were called upon to pay duty.         It must be mentioned that the Board issued a clarification that  the goods of the kind manufactured by the Respondents were  classifiable under Tariff Heading 94.01 if they were meant for seats of  motor vehicles and Tariff Heading 87.14 if they were meant for seats  of two wheelers.         The Respondents filed the Appeals, which were dismissed by the  Commissioner (Appeals).  The Respondents then filed further Appeals  to CEGAT.   Earlier decisions of CEGAT, holding that such goods fell  under Tariff Heading 94.01 were cited.  In spite of that CEGAT  concluded, in the impugned Judgment, that such goods should fall  under Tariff Heading 40.08.  In so doing, CEGAT relied upon another  Judgment of the Tribunal which had dealt with earlier Tariff Headings  16A and 34A.  It must be mentioned that those Tariff Headings were  completely different from the Tariff Headings now under consideration.         Tariff Headings 94.01 and 40.08 read as follows: "94.01: Seats (other than those of heading    No.40.01), whether or not  convertible into beds, and parts  thereof.          40.08:  Plates, blocks, sheets, strikes, rods

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and profile shapes of vulcanized  rubber other than hardened rubber  of cellular rubber."                  It is also necessary to consider certain Chapter Notes which have  been relied upon by the parties.  In Chapter 94, Notes 1 (a) and 2  read as follows: "1. This Chapter does not cover:

(a)     Pneumatic or water mattresses, pillows  or cushions, of Chapter 39,40 or 63; ................................................................. .................................................................

2.      The articles (other than parts) referred to  in heading Nos.94.01 to 94.03 are to be  classified in those headings only if they are  designed for placing on the floor or ground.

         The following are, however, to be  classified in the above-mentioned headings  even if they are designed to be hung, to be  fixed to the wall or to stand one on the other:

(a)     Cupboards, bookcases, other   shelved furniture and unit  furniture;

(b)     Seats and beds."

In Chapter 40, Notes 2 (e) and 9 read as follows:      "2. This Chapter does not cover: (a)     .................................................. (b)     .................................................. (c)     .................................................. (d)     .................................................. (e)     Articles of Chapter 90, 92, 94 or 96; (f)     .................................................."

...................................................................

9.      In heading Nos.40.01, 40.02, 40.03,  40.05 and 40.08, except as otherwise provided,  the expressions ’plates’, ‘sheets’ and ‘strips’  apply only to plates, sheets and strip 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’ and ‘profile shapes’ apply only to such  products, whether or not cut to length or  surface-worked but not otherwise worked.

               Sub-heading No.4008.21 shall also apply  to "plates", "sheets" and "strips", whether or  not cut to shape and surface-worked or further  worked so as to render them fit for resoling or  repairing or re-treading of rubber-tyres."

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               Mr. Jain, learned counsel for the Respondents, has strongly  relied upon Chapter Note 1 (a) of Chapter 94 and submitted that  pneumatic or water mattresses, pillows or cushions of Chapter 39, 40  and 63 are excluded from Chapter 94.  He submitted that  Respondents’ goods are cushions falling under Chapter 40 and are  thus covered by Tariff Item 40.08. They submitted that they are thus  excluded from the purview of Chapter 94.  He submitted that,  therefore, Tariff Heading 94.01 cannot cover goods of the  Respondents.   On the other hand, Mr. Venkataramani submitted that Tariff  Item 94.01 is a specific Item, which deals with seats and parts thereof.   He pointed out that it is an admitted position that the Respondents  goods are cut to the shape of seats and are only used in seats of  buses, motor vehicles and/or two wheelers.  He submitted that there  being a specific Entry covering seats and parts thereof, these goods  cannot fall into general entry covered by Tariff Heading 40.08. In  support of his submissions, Mr. Venkataramani relied upon Chapter  Note 2(e) of Chapter 40 and submitted that any goods which falls  within any of the Tariff Items in Chapter 90 gets excluded from  Chapter 40.           We find substance in the submission of Mr. Venkataramani.   Chapter Note 1(a) of Chapter 94 excludes cushions falling in Chapter  40.  At the same time, Chapter Note 2(e) of Chapter 40 excludes  articles which would fall in Chapter 90.  Thus, one would have to see  which of the Tariff Headings, in these two Chapters, specifically deals  with goods of the type manufactured by Respondents.  If the goods  were mere cushions they may get covered by Chapter 40 and would  then be excluded from Chapter 90.  However, if the goods are a seat  or a part thereof they get specifically covered by Tariff Heading 94.01.   In such cases, by virtue of Chapter Note 2(e) to Chapter 40, these  goods get excluded from Chapter 40.  Between Tariff Headings 94.01  and 40.08, Tariff Item 94.01 is a more specific heading dealing with  seats and parts thereof.  It is an admitted position that the goods  manufactured by the Respondents are cut in the shape of seats and  are used only in seats. They are thus cushions of seats and are parts  of seats. They then fall under Tariff Heading 94.01 and Tariff Heading  40.08 thus get excluded.  This view is also supported by H.S.N.  Explanatory Note, which states that Tariff Entry 94.01 would cover all  seats including seats of vehicles.         It must, however, be stated that seats of two wheelers get  excluded from Chapter 94 by virtue of Chapter Note 1(h), which reads  as follows: "1. This Chapter does not cover: .............................................. .............................................. (h)     Articles of heading No.87.14."

Chapter Note 87.04 specifically deals with parts of two wheelers.  Therefore, seats of two wheelers would fall under Tariff Heading 87.14.

       Mr. Jain next relied upon Chapter Note 2 to Chapter 94 (which  has been set out hereinabove).  He submitted that Tariff Heading  94.01 would only cover seats which have been designed for placing on  the floor or on the ground or which could be hung or fixed on the wall  or designed to stand one on the other.  He submitted that seats of cars  are not designed to be placed on the floor or ground and therefore  they would not be covered under Tariff Heading 94.01.  We are unable  to accept this submission.  The term ‘floor or ground’ would also  include floor of the car or vehicle.  Seats made for vehicles are placed  on the floor of the car or vehicle.  Therefore, Chapter Note 2 would not  exclude seats of vehicles.  This also finds support from H.S.N.  Explanatory Notes.

       Reliance was also sought to be placed, by Mr. Jain, on Chapter  Note 9 of Chapter 40 which has been reproduced hereinabove.  In our

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view, this Chapter Note does not in any way assist the Respondents.

       In the above view, it will have to be held that the impugned  Judgment cannot be sustained.    Before we part one other aspect must be mentioned.  As stated  above, earlier Judgments of the Tribunal in the case of J. K. Foam  Products vs. C.C.E, Kanpur, reported in 1997 (94) ELT 497 and  C.C.E, Coimbatore vs. Ajay Rubber, reported in 1998 (100) ELT  478, were cited.  These Judgments are directly on the point. It has  been held that such goods are classifiable under Tariff Heading 94.01.   These being Judgments of coordinate Benches were binding on the  Tribunal.  Judicial discipline required that the Tribunal follow those  Judgments.  If the Tribunal felt that those Judgments were not correct,  it should have referred the case to a larger Bench. The Judgment in  the case of C.C.E., Madras vs. M. M. Rubber Co. Ltd., Madras,  reported in 1984 (15) ELT 198, was based on the then Tariff Items  16A and 34A.  Those Tariff Items were completely different. That  Judgment has no relevance to the question under consideration.   

       In the above view, the impugned Judgment is set aside.  It is  held that the goods of the Respondents would fall under Tariff Heading  94.01.            The Appeals are accordingly allowed.  There will, however, be no  order as to costs.