Synthetic nitrile rubber classification under Chapter 40 upheld where technical evidence showed acrylonitrile butadiene rubber in primary form

Imported Chemigum N-328-B and Chemigum N-628-B were held classifiable as synthetic nitrile rubber under Chapter 40 because supplier literature, laboratory certificates and other technical evidence showed they were acrylonitrile butadiene rubber in primary form. Chapter 39 could not apply, as it excludes synthetic rubber covered by Chapter 40, and the Department did not rebut the technical evidence with chemical testing. The goods were therefore correctly classified under Heading 4002.59, and the assessee succeeded.

---

---

Issues: Whether the imported products Chemigum N-328-B and Chemigum N-628-B were classifiable under Chapter 40 as synthetic rubber, or under Chapter 39 as plastics and articles thereof.

Analysis: The imported goods were described as synthetic nitrile rubber and the evidence on record, including supplier literature and laboratory certificates, showed that they were acrylonitrile butadiene rubber satisfying the characteristics relevant to Chapter 40. Chapter 39 expressly excludes synthetic rubber as defined for Chapter 40, and the Department did not controvert the appellant's technical evidence by chemical testing. Since the goods were synthetic rubber in primary form and specifically covered by the heading for acrylonitrile butadiene rubber, the Chapter 39 classification was not sustainable.

Conclusion: The products were correctly classifiable under Heading 4002.59 of Chapter 40 and not under Chapter 39; the appeal succeeded in favour of the assessee.

Ratio Decidendi: Where imported goods are shown by credible technical evidence to be synthetic rubber falling within a specific Chapter 40 heading, they cannot be classified under Chapter 39 because that chapter excludes synthetic rubber covered by Chapter 40.

---