1997 INSC 1143
                                       Collector of Central Excise, Madras

                                                           Vs

                                                     MRF limited

                                           (S. P. Bharucha, S. C. Sen JJ)

                                                      03.12.1997

                                                     JUDGMENT

BHARUCHA, J.

1.We are concerned in these appeals with the product "rubber cement" or "black vulcanising
cement" manufactured by the assessees .The case before the Tribunal was that the said product fell
under Tariff Entry 40.17 according to the assessees and under Tariff Entry 40.05 according to the
Revenue, the appellant before us. The Tribunal came to the conclusion that the said product was
correctly classifiable under Tariff Item 35.01 prior to 10th February, 1987.

2.The Tribunal noted the process by which the said product was manufactured. It found that the raw
material that was used to manufacture the said product was classified by the Revenue under Tariff
Entry 40.08, which reads thus :

                  "Plates, blocks, sheets, strip, rods, and profile shapes, of vulcanised rubber other than
                  hardened rubber."

The Tribunal said that this would point to the position that the raw material was vulcanised rubber
and that, therefore, the said product could not possibly fall within Tariff Entry 40.05 which spoke of
"Compounded rubber, un-vulcanised, in primary forms....".3.Learned counsel for the Revenue drew
our attention to Chapter Note 3 of Chapter 40 of the Central Excise Tariff which reads thus: "3.In
headings Nos.40.02, 40.03 and 40.05, the expression 'primary forms' applies only to liquids and
pastes (including latex, whether or not prevulcanised, and other dispersions and solutions), and
blocks of irregular shape, lumps, bales, powders, granules, crumbs and similar bulk forms."4.It
seems to us that no argument based on Chapter Note 3 or otherwise can be of any avail to the
Revenue, having regard to the undisputed position that what is used as a raw material to produce the
said product is classified by the Revenue itself a vulcanised rubber. If the raw material is vulcanised
rubber, the said product made from it cannot possibly be unvulcanised compounded rubber.5.The
Revenue is, therefore, unable to satisfy us that the said product falls under Tariff Item 40.05 as it
claims.It cannot argue that, in any event, the Tribunal was in error in classifying the said product
under Chapter 35.

6.The appeals are dismissed with no order as to costs