2012 (1) TMI 121 - AT - Central Excise

Waiver of pre-deposit of duty - Classification of bulker under 87042319 or 87079000 - Denial of benefit of Notification No. 6/2006-C.E. - Held that - as per the product literature produced by the applicant semi-trailer mounted bulk transporter where the bulkers is fixed on chassis without any prime mover. This bulker can be attached to prime mover which is called horse as the bulker is not attached with prime mover hence prima facie is classifiable under Heading 87079000 of the Tariff as other bodies for motor vehicles. Therefore, we find no merit in the contention of the applicant in respect of semi-trailer mounted bulk transporter. - In support of other bulkers when the prime mover is fixed with bulker we find the same are prima facie classifiable under chapter sub-heading 8704 of the Tariff as claims by applicants - during the period in dispute applicant cleared 4 numbers of Bulkers without prime mover and duty comes to Rs. 5 lakhs on these bulkers - Conditional stay granted.

Summary

Issues: Classification of bulkers under different headings, waiver of pre-deposit of duty, suppression of facts, time-barred demands, merits of the case

In this judgment by the Appellate Tribunal CESTAT MUMBAI, the applicant sought a waiver of pre-deposit of duty amounting to Rs. 55,57,456/-, interest, and penalty related to the classification of two types of bulkers under the Tariff. The applicant claimed classification under Heading 87042319, benefiting from Notification No. 6/2006-C.E., while the Revenue contended that the bulkers should be classified differently and denied the benefit of the said notification. The Tribunal analyzed the literature provided by the applicant for both types of bulkers and found that one type, a semi-trailer mounted bulk transporter not attached to a prime mover, should be classified under Heading 87079000 of the Tariff. However, for the other bulkers where the prime mover was fixed with the bulker, the Tribunal agreed with the applicant's classification under chapter sub-heading 8704 of the Tariff.

Regarding the issue of suppression with intent to evade payment of duty, the Tribunal noted that the adjudicating authority had previously classified the bulkers favorably for the applicant under Heading 8704 of the Tariff. As a result, the Tribunal found the allegation of suppression unsustainable and highlighted that a major portion of the demand was time-barred. The applicant also presented arguments on the merits of the case, which were considered by the Tribunal.

The impugned order directed the applicant to deposit Rs. 5,00,000/- for clearing four bulkers without a prime mover during the disputed period. Upon this deposit, the pre-deposit of the remaining duty and penalty was waived, and the recovery was stayed during the appeal process. The Tribunal set a compliance deadline for the deposit and further proceedings. The judgment provided a detailed analysis of the classification of the bulkers, considerations on suppression of facts, time-barred demands, and the waiver of pre-deposit of duty based on the specific circumstances of the case.