Holding

The goods were only surface‑worked, not further‑worked, and therefore fall under sub‑heading 4008.21, the specific entry prevailing over the general entry 4016.99.

Summary

Speedway Rubber Co. manufactured plates, sheets and strips of vulcanised rubber which were dyed and pressed in a hydraulic press. The Central Excise Department classified the goods under sub‑heading 4016.99, arguing that the hydraulic pressing constituted "further working" under Note 9 of Chapter 40 of the Central Excise Tariff Act, 1985. The Collector had earlier classified them under sub‑heading 4008.21, holding that the process amounted only to "surface working". The Tribunal upheld the Department’s view, but the Supreme Court examined whether the process fell within the meaning of "further working" and whether the specific heading 4008.21 should prevail over the general heading 4016.99 under Rule 3(a) of the Interpretation Rules. The Court held that the hydraulic pressing was merely surface work, not further work, and that the specific entry 4008.21 overrides the general entry 4016.99. Consequently, the goods were classified under sub‑heading 4008.21 and the Tribunal’s order was set aside.

Issues considered

Whether the dyeing and hydraulic pressing of rubber plates, sheets and strips constitutes "further working" or merely "surface working" under Note 9 of Chapter 40 of the Central Excise Tariff Act, 1985.
Whether the specific heading 4008.21 overrides the general heading 4016.99 pursuant to Rule 3(a) of the Interpretation Rules to the Central Excise Tariff Act, 1985.
Whether the 1990 amendment to Note 9 can be applied retrospectively to classification lists filed before its commencement.

Legislation cited

Central Excise Rules, 1944s. Rule 57C
Central Excise Tariff Act, 1985s. Note 9 (Chapter 40), s. Rule 3(a) of the Interpretation Rules

Subjects

central excisetariff classificationsurface workingfurther workingNote 9heading 4008heading 4016Rule 3(a)interpretation of statutesrubber products

Judgment

A MIS. SPEEDWAY RUBBER CO. +-
v.
COMMISSIONER, CENTRAL EXCISE, CHANDIGARH

MAY 7, 2002

B [S. RAJENDRA BABU AND RUMA PAL, JJ.)
...
j
Central Excise Tariff Act, 1985-Chapter 40, Note 9-Tariff items-
Sub-heading Nos. 4008, 2 I and 4016. 99-Goods-Classification of-Whether
to be under sub-heading 4008.21 or 4016.99-Note providing that further
c worked' goods not to fall under sub-heading 4008.2 I-Held, goods in
question classifiable under sub-heading 4008.21 since manufacturing process
of goods did not involve further working' and since the specific entry in
heading 4008 would overrule general entry in heading 4016.-Jnterpretation
.r
Rules to Central Excise Tariff Act, 1985-Rule 3(a).
D
Words and Phrases-'Surface working' and further working'-Meaning
of in the context of Chapter 40 Note 9 of Central Excise Tariff Act, 1985.

The question for consideration, in the present case is whether certain
goods i.e. 'plates', 'sheets' and 'strips' would be classified under Heading 4008
E or 4016 of Central Excise Tariff Act, 1985.

The goods which were manufactured by the appellant were classified by ...
it under sub-heading 4008.21. Revenue levied duty on the goods classifying
the same under sub-heading 4016.99 holding that the goods were classifiable
under sub-heading 4008.21 only after amendment of Note 9 'Chapter 40'in .1
F ~
~
1990 and since the demand of duty was for the period between July 1989 to
December; 1989 the same would fall under sub-heading 4016.99.

Note 9 of Chapter 40 before its amendment by Finance Act, 1990 covered
'plate', 'sheets' or 'strips' which are of regular geometric shape, whether uncut
G or cut to rectangular shape, whether printed or surface worked "but not
otherwise cut to shape or further worked"·

Appellant-Manufacturer, in the manufacturing process used to place the
'plates', 'sheets' and 'strips' in the dye and subjecting the same to pressing in

H 826
SPEED\\' A Y RUBBER CO. r COMMISSIONER.CENTRAL EXCISE 827

the hydrolic press. A
Department confirmed the demand of duty. In appeal to Collector (appeals),

-- the impugned goods were classified under sub-heading 4016.99.

Custom, Excise and Gold (Control) Appellate Tribunal classified the
impugned products under sub-heading 4016.99 holding that the process of dye B
and grooving by Hydraulic press fell within the meaning of'further worked'
as it changed the basic character of the goods.

In appeal to this Court appellant contended that goods would be classified
under sub-heading 4008.21 since amendment could not be extended to
classification list filed prior to that date and since the amendment was only C
clarificatory in nature which neither restricted nor enlarged the scope of
heading No. 4008 or 4016.

Department contended that classification of the case under sub-heading
4016.99 as 'other' articles was more appropriate and the same could not be D
classified under sub-heading 4008.21 as the final product, after further
processing, do not remain 'plates', 'sheets' and ;strips' as defined under Note
9 of Chapter 40.

Allowing the appeals, the C.ourt
E
HELD: I. The goods in question would be classified under sub-heading
4008.21 and not under sub-heading 4016.99. As per Rule 3(a) of the
Interpretation Rules to Central Excise Tariff Act, 1985, "The heading which

-
provides the most specific description shall be preferred to headings providing
a more general description". Accordingly, heading No. 40.08 provides more
specific description to the impugned goods than heading No. 40.16 and hence, F
the specific entry should overrule the general entry. Moreover, the
manufacturing process involved 'surface working' and does not include 'further
working'. This is evident from the interpretation of Note 9 of Chapter 40, that
further working would envisage an activity other than those mentioned therein.
1833-D, El G

2. To determine the nature of the impugned goods, the difference between
"surface worked" and "further worked" is significant. "Surface working"
means working on the surface of the material. "Surface working" may include
coating, polishing, colouring, embossing, corrugating or even growing when
such grooving is only on the surface of the material. 1833-D, El H
828 SUPREME COURT REPORTS 12002] 3 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4844-4846 of
1999.

B
From the Judgment and Order dated 30.12.98 of the Customs Excise and
Gold (Control) Appellate Tribunal, New Delhi in A, Nos, E/2379/91, E/3110 and
3111/91-C in F.O. No .. 1282-84of1998.
-
Sudhir Malhotra and Sanjeev Malhotra for the Appellants.

Mukul Rohatgi, Additional Solicitor General, M. Gauri Shanker Murthy,
K.C. Kaushik and 8. Krishna Prasad, for the Respondents.

c The Judgment of the Court was delivered by

RAJENDRA BABU, J. This is a statutory appeal by the appellants
under Section 35L(a) and (b) of the Central Excise & Salt Act, 1944, against
the judgment and order of the Custom, Excise and Gold (Control) Appellate
D Tribunal [hereinafter refe1Ted to as 'the Tribunal'] dated 30.12.1998. The dispute
is over classification of the impugned goods under the Central Excise Tariff
Act, 1985 [hereinafter referred to as 'the Act'], and determination of the rate
of duty payable on the goods manufactured by the appellants. The duty
demand is for the period between July 1989 to December 1989 prior to the
1990 budget.
E
The stand of the Department is that the impugned goods are classifiable
under sub-heading 4016.99, prior to the 1990 budget. After the 1990 budget,
they are classified under sµb-heading 4008.21. The contention of the appellants
is that the impugned goods were classifiable under sub-heading 4008-21

F
before the 1990 budget and even thereafter.

The impugned goods were cleared under sub-heading 4008.2 I of the
-
...
Act as per the approved classification under Rule 1738 of the Central Excise
Rules, 1944. In Classification List No. 35/89-90 dated 7.4.1989, impugned
goods were claimed under sub-heading 4008.2 I, and were fully exempted from
G the excise duty vi de notification No. 4 7176 of the Central Excise dated 9 .3 .1976.
The Classification List was duly approved without modification by the
Assistant Collector, Central Excise, Jalandhar, by order dated 28.12.1989.

While the original Classification List No. 35/89-90 was pending, on
account of the change of rate of duty qua ADV tyres, [ 14% ADV instead of
H specific rate of duty of Rs. 42 per tyre], the appellants submitted another
x

SPEEDWAY RUBBER CO. 1•. COMMISSIONER, CENTRAL EXCISE, [RAJENDRA BABU, J.J 829

Classification List No. 173/89-90 on 6.11.1989. The Department chose to A
approve the original Classification List No. 3.5/89-90 without any modifications.
The onginal list was neither reviewed nor revoked.

Subsequently, the Superintendent, Central Excise, Range 11, Jalandhar,
on 2.2.90 vide show cause notice issued under C.No., CE-20/Dernand/R.Il/98/
139, demanded duty of Rs. 5,57,300.99 for the period between July 1989 and B
December 1989 by classifying the goods under sub-heading 4016.99 of the
- '
Act.

On 30.3.1990, another show cause notice was issued under C.No.V-
40(30) !2/Val/86/3566-67, by the Assistant Collector, Central Excise, Jalandhar, C
and the classification of the impugned goods in Classification List No. 173/
89-90 was objected to, on the ground that Classification List No. 173/89-90
was effective retrospectively with effect from 1.4.1989.

In addition, another show cause notice dated 5.4.90 was issued under
C.No. V-40(30)/II/Val/-96/3712-13, by the Assistant Collector, Central Excise, D
Jalandhar. The Classification List filed by the appellants effective !Torn 22.9.1989
was also objected .
•
It is pertinent to mention that show cause notice for demand of duty
was issued on 2.2.1990, whereas Classification List No. 173/89-90 was objected
on 30.3.1990. The demand of duty was objected to on the following grounds. E
I. It was without objecting to or in revocation of the original
Classification List.

2. The period from July 1989 to 5.1 l.1989 was covered by the
Original Classification List, which was duly approved by the
F
Department.

3. Classification List No. 173/89-90 filed on 6.11.1989 could not be
effective retrospectively with effect from 1.4.1989. It could only be
effective with the effect from 6.11.1989.

4. Demand for the above period was in contravention of Classification G
List No. 35/89-90 which was duly approved on 30.12.1989.

5. Clearance during the period 6.1 l.1989 to 12/ 1989 was covered by
Classification List No. 173/89-90.

Therefore, the observations in this show cause notice dated 30.3.1990 H
830 SUPREME COURT REPORTS [2002] 3 S.C.R.

A with respect to Classification List No. 173/89-90 are contended to be factually
incorrect.

The appellants filed on 25.5.1990 an interim reply to the show cause
notice dated 5.4.1990 and submitted that it has been reversing the credit of
duty taken against inputs used in the manufacture of subject goods in view ..
~

B of Rule 57C of the Central Excise Rules, 1944. It further stated that if the
Department holds that the subject goods are dutiable then there is no bar of
rule. In this view of the matter they were entitled to avail the credit of duty
against the manufacture of the impugned goods. The appellants had reversed
a sum of BED Rs. 11,61,951.29, SEB Rs. 8,097.54 in the RG 23 A Part II Register, .J

C and requested that this credit may be allowed.

The Assistant Collector, Central Excise, Jalandhar vide order-in-original
No. 55-57/AC/DemandNal/90 dated 31.7.1990 issued C.No. V-30(5)D/90/9672
dated 4.9 .1990 holding that:

"I confirm the demand for Rs. 5,57,300.99 under Section 1 IA of the
D Central Excises and Salt Act, 1944. Classification List Nos. 173/89/90
and No. 163/89/90 effective from 1.4.1989 and 22.9.1989 filed by the
appellants, both of which stand approved accordingly classifying the
impugned goods under sub-heading 4016.99 of the 1985 Act and
consequently exemption under notification No. 47/76 dated 9.3.1976 is
denied."
E
Being aggrieved by the order of the Assistant Collector,· the appellants
filed appeals with the Collector [Appeals], Central Excise, Chandigarh. The
Collector, vide order-in-appeal No. 372-374/CE/Chd/91 dated 13.3.1991, set
aside order of the Assistant Collector and ordered classification of impugned
F goods under sub-heading 4008-21.

The Department then filed appeals to the Tribunal. The Tribunal, by
...
majority opinion, allowed all the three appeals filed by the Department, and
upheld the order of the Assistant Collector classifying the impugned goods
under sub-heading 4016.99. Therefore, this appeal has been filed against the
G impugned order of the Tribunal.
The nature of the goods manufactured by the appellants is crucial in
determining the sub-heading under which they would be classified. The
appellants have indicated four stages of their production as under :

1. Natural/synthetic rubber is mixed with certain chemicals including
H black carbon with the help of a mixing mill.
SPEEDWAY RUBBER CO. r. COMMISSIONER, CENTRAL EXCISE, !RAJENDRA BABU, J.J 831

2. The material so obtained is fed into extruder hopper. Extruder dye A
is of the required size and shape.
3. Extruder material is taken to water tank for cooling and over
conveyor belt.
4. The extruded material is placed in dye and is pressed with the help
of hydraulic press and what emerges out is vulcanized grooved B
material called procured tread.

Heading 40.08 reads as "Plates, Block, Sheets, Strips, Rods, and profile
shapes of vulcanized rubber other than hard rubber" and sub-heading 4008.21
reads as "Plates, Sheets, and Strips for resoling or repairing or retreading
rubber tyres". On the other hand, Heading 40.16 reads as "Other articles of C
vulcanized rubber other than hard rubber and sub-heading 4016.99 again
states "other".

Note 9 of Chapter 40 before its amendment in 1990 states:

"In heading Nos. 40.01, 40.02, 40.03, 40.05, and 40.08, the expressions D
'plates', 'sheets', and 'strips' apply only to plates, sheets and strips
and to blocks of regular geometric 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 worker.

In heading No. 40.08, the expressions 'rods', 'profile shapes' apply E
only to such products, whether or not cut to length or surface-worked
but not otherwise worked."

Under Finance Act of 1990, Chapter 40 Note 9 was changed as under:

"In heading Nos. 40.01, 40.02, 40.03, 40.05 and 40.08, except as F
,
otherwise provided, 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 G
shape or further worked.

Moreover, explanatory notes to Harmonised Commodity Description
and Coding Systems at pace 579, States : 'plates, sheets and strips, (heading
Nos. 40.01, 40.02, 40.03, 40.05 and 40.08) of Chapter 40 are to be read as
follows: H
832 SUPREME COURT REPORTS [2002] 3 S.C.R.

A "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, channeled, ribbed, etc.)
or simply cut to rectangular (including square) shape, whether or not
having the character of articles, but may not be otherwise cut to
shape or further worked."
B
Therefore, the question that arises for consideration is whether the
appellant manufacturer's process of placing the plates, sheets and strips in
the dye and subjecting the same to pressing in the hydraulic press is in the ---
nature of 'further working'.

C The appellants contended that the amendment was effective only from
31.05.1990 and, therefore, the same could not be extended to the classification
list filed by them prior to that date. The amendment was merely clarificatory
in nature and it neither restricted not enlarged the scope of heading no. 40.08
or 40.16. Hence, the primary issue for consideration is the interpretation and
D application of Note 9 of Chapter 40 before its amendment in 1990. A plain
reading of Note 9 before its amendment would show that what is covered are
-
plates, sheets and strips which are of regular geometric shape, whether uncut
or cut to rectangular shapes, whether printed or surface worked "but not
otherwise cut to shape or further worked."

To determine the nature of the impugned goods, the difference between
E "surface worked" and "further worked" is significant. 'Surface working' means
working on the surface of the material. 'Surface working' may include coating,
polishing, colouring, embossing, corrugating or even grooving when such
grooving is only on the surface of the material.

The Department contended that though at the initial stage the goods
F
manufactured by the respondents emerged in the form of plates, sheets or .
strips, thereafter they are moulded, when their edges are rounded off and the
shape of the cross section becomes an trapezoid. As a result, the final ·
products do not remain/plates/sheets/strips as defined under Note 9 of Chapter
40, since they are further processed and hence, cannot be classified under
G sub-heading 4008.21. The classification under sub-heading 4016.99 as "other"
articles of vulcanised rubber was more appropriate and, therefore, the exemption
Notification No. 47176, as amended, was not applicable to the appellants. The
two members of a Bench of the Tribunal having difference in their view the
matter was referred to the Third Member.

H The majority view of the Tribunal held that the basic character of the
SPEEDWAY RUBBER CO. 1•. COMMISSIONER, CENTRAL EXCISE, [RAJENDRA BABU, J.] 833
goods changed when they were subjected to the process of dye and grooving A
by hydraulic press. In their opinion, "even after the emergence or plates,
sheets or strips after extrusion, the material had to undergo the hydraulic
press stage to become the plates, sheets and strips meant for resoling,
repairing or retreading under the sub-heading No. 4008.2 l." This process fell
within the meaning of"further worked" and; therefore, the impugned products
could not be classified under sub-heading no. 4008.21 as held by the Collector. B
The minority opinion held that the types of processes or activities,
which lead to 'surface working' were illustrated and indicated in the bracket
after the words 'surface worked'. This meant that further working would
constitute so1ne process or activity, which is to be undertaken after surface C
working. As the manufacturing process claimed by the appellants had neither
been contradicted not shown to be wrong, it was held that the impugned
goods were only 'surface worked' and 'further worked' and could, therefore,
be classified under sub-heading No. 4008.21.

We may notice that as per Rule 3(a) of the Interpretation Rules to D
Central Excise Tariff Act, 1985, "The heading which provides that most specific
description shall be preferred to headings providing a more general description."

- Accordingly, the heading No. 40.08 provides more specific description
to the impugned goods than heading No. 40.16 and hence, the specific entry
should overrule the general entry. Moreover, the manufacturing process E
involved 'surface working' of the types described above and does not include
'further working'. This is evident from the interpretation of Note 9 of Chapter
40, that further working would envisage an activity other than those mentioned
therein. Hence, on the basis of the aforesaid discussion, the impugned goods
would be classified under sub-heading 4008.21 and not under sub-heading F
4016.99 as claimed by the Department.

Thus, these appeals stand allowed by setting aside the order of the
Tribunal and restoring that of the Collector.

K.K.T. Appeals allowed.