TaxTMI 
TaxTMI 
1992 (8) TMI 182
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....ound that the unit soles are not designed for use in sponge rubber chappals. The appeal filed by the respondents was allowed by the Collector. Hence, the Department is in appeal before us. 2. The goods imported are described in the Bill of Entry as EVA Unit Soles. The claim of the Department is that these items are covered by Item 473 of the Appendix 3 part A by virtue of the amendment of the Policy dated 13-11-1986 whereas the respondents claim that these are excluded from Appendix 3 part A and therefore, are covered under OGL. 3. The Item 473 of Appendix 3 part A before amendment reads as follows :- Appendix 3 Part A-item 473 "Components of footwear excluding the following: (i) Unit Soles; (ii) ........ After the amendment by public notice No. 130-ITC (PN)/85-88 dated 13-11-1986, it reads as follows: ltemNo.6 135 Appendix 3 Part The description of this sub-entry shall be A Entry No. 473 amended as under : sub-entry No. (1) (i) Unit soles/Cut Soles from Leather." 4. According to the respondents, Item 473 excluded Unit Soles of all other varieties as Unit Soles are separated by, ...........therefore leather is applicable to cut soles and not t....
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....ushed aside. He also brought to our notice the judgment of the Bombay High Court in Lokash Chemical Works v. M.S. Mehta, Collector of Customs (Preventive) - 1981 (8) E.L.T. 235. He submitted that in view of the above, clarification issued by the Import & Export Control authorities is binding on them. 5. Shri Nair appearing for the Department submitted that under Para 124 any clarification issued by the JCCI & E is binding provided the clarification is obtained by the Customs Authorities. Since in the present case, the respondent obtained the clarification it is not in accordance with para 124 & 27(2) of the Imports & Exports Policy Procedure. Therefore, it is not binding on the customs authorities. 6. Item 473 Appendix 3 Part A before amendment excluded "all unit soles" irrespective of the material with which they are made. After amendment in addition to "Unit Soles", they have added "cut soles from leather". After the amendment, the entry reads Unit Soles/Cut Soles from Leather. If the intention of the Policy makers is to exclude unit soles of leather only, nothing prevented them from saying Unit Soles of Leather and Cut Soles of Leather. The very fact that they have retaine....
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...., 1985 (5 of 1986), as is specified in the corresponding entry in column (2) of the said Table, from the whole of the duty of Excise leviable thereon under section 3 of the Central Excises and Salt Act, 1944 (1 of 1944), subject to the intended use or the conditions, if any, laid down in the corresponding entry in column (4) of the said table. THE TABLE Sl. No. Sub- heading No Description of goods Intended use/ con-. Dition (1) (2) (3) (4) 1. 6401.9 (i) ........ (ii) ...... (iii) Soles specially made and dearly recognisable as being designed for sponge rubber chappals." 8. The main contention of Shri Nair is that the goods imported are made of plastics. Therefore, they cannot be treated as clearly recognisable as being designed for sponge rubber chappals. He relied on the meaning of rubber sponge in Condensed Chemical Dictionary, 10th Edition. "Rubber sponge (foam rubber; cellular rubber) A flexible foam produced by beating air into heat-sensitized latex, with subsequent vulcanization, or by incorporating ammonium carbonate or sodium bicarbonate int....
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....atever the material with which they are made, as long as they are designed for Sponge Rubber Chappals, they are exempt. Secondly accepting that only "Sponge Rubber Soles" alone can be designed for sponge rubber chappals, we may refer to the Dictionary meaning and also how they are treated in common parlance. From a reading of the definitions of the rubber synthetic from the Condensed Chemical Dictionary, it is clear that rubber sponge is distinct from rubber synthetic. Rubber sponge is made from natural rubber latex whereas the rubber synthetic is a man-made product. An elastomer is a man-made product having the properties of natural rubber. Therefore, an elastomer cannot be treated as a rubber sponge in the light of the meanings given in the Condensed Chemical Dictionary. However, according to common parlance, there appears to be no distinction drawn between the sponge rubber and synthetic rubber. The same is supported by the materials in the handbook which says that sponge rubbers are not made of natural rubber but are produced from synthetic rubbers or plastics. Applying the common parlance test, though sponge rubber is different from synthetic rubber namely; an elastomer sin....
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....f the table annexed to the said Notification 49/86-C.E. extends exemption of various parts of footwear only on the basis of material of which these are made; while sub-item (ii) of the said sl. no. exempts some component parts of footwear made of wood or leather, sub-item (iii) exempts soles for rubber chappals. In the circumstances, to give a common parlance meaning to the expression (sponge rubber chappals) to induce chappals having soles of plastic material also would be improper......." 13. While examining the terms of the exemption, it is notified that it is available to - (a) soles specially made; and (b) clearly recognisable as being "designed for sponge rubber chappals" (Emphasis supplied) 14. A chappal consists of two parts-the sole and the strap which is attached to the sole. The names 'rubber chappals', 'leather chappals', etc. are given to chappals with reference to the material of which the sole is made because, in a chappal, unlike in a shoe, it is the sole which gives to it its name, distinguishing character and even accounts for its major cost. Once this is understood, there should be no difficulty in interpreting the expression "sponge rubber chappal....
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.... Member (T).(Harish Chander) Vice President 21-1-1992 19. [Order per: K.S. Venkataramani, Member (T), Third Member on Reference]. - The learned Departmental Representative referred to the submissions before the Bench already made to say that according to the Textual Authorities sponge rubber is distinct from ethylene-vinyl acetate co-polymer (EVA) which is a plastic material. Sponge rubber is produced by beating air into unvulcanised latex, or by incorporating a gas-producing ingredient into a strongly masticated rubber stock. Shri J.N. Nair contended that EVA being plastic material is not covered by the expression sponge rubber. The Notification No. 49/86 exempts soles specially made and clearly recognisable as being designed for sponge rubber chappals consisting of only the sole and straps and it is known by the material of which the sole is made. The imported goods are plastic material for which the notification does not apply. Shri K.V. Kunnikrishnan, the learned Consultant appearing for the applicants contended that elastomer is having all the qualities of rubber and is in the nature of synthetic rubber. There is nothing to indicate according to the learned Cons....