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TMI Blog1985 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... Haulpak Rear Dump and Tractor Rear Dump. The Superintendent issued a demand on 7-8-1969 covering 56 Rear Dump and 15 LW 35 Haulpak for duty amounting to Rs. 72,42,685.91. On this an adjudication was made and the Deputy Collector confirmed the demand. The respondents challenged the order before the Karnataka High Court in Writ Petition 813 of 1971. The Hon ble High Court of Karnataka in their Order dated 21-11-1974 held that excise duty levied under Item 34 of the First Schedule to the Central Excises and Salt Act has no application to a motor vehicle which is not suitable for use on public roads. The Court also held that the Deputy Collector did not go into the question whether or not Haulpak Rear Dump and Tractor Rear Dump are suitable for being used upon public roads. The order was held unsustainable. The Deputy Collector was directed to examine the question and then to decide afresh whether these two types of vehicles are exigible to excise duty. Paragraph 17 of the judgment is as follows : In case the Deputy Collector holds that these two types of vehicles are adapted for use upon public roads, and hence come within the ambit of Item No. 34 the First Schedule to the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd includes a chassis and a trailer; but does not include a vehicle running upon fixed rails- * * *1. * 2 * * * * *3. * * * Motor vehicles, not otherwise specified.4. EXPLANATION : For the purpose of this item. where a motor vehicle is mounted, fitted or fixed with any weight-lifting, earth moving and similar specialised material handling equipment, then such equipment, other than the chassis shall not be taken into account. The principles regarding interpretation of tariff entries are well settled. In 1983 E.L.T. 116 (Commissioner of Sales Tax v. Aggarwal Co.) following the earlier Supreme Court decision held that the general term used for describing any commodity in any fiscal legislation, would cover that commodity or item or article in all its forms and varieties. Terms under excise tariff item should be given the widest scope. In Western India Plywood v. C.C.E. Cochin-1985 (19) E.L.T. 590 (Tribunal) (Order No. 591/84-D dated 11-10-1984) (CEGAT) in para 39 the same position has been reiterated. In that case the Tribunal has held that an article cannot be relegated to the residuary Item if it can be said to fall within the scope of a specific Item. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h public have no right to access is not a motor vehicle within the meaning of that Act. In Hindustan Motors Ltd. v. Union of India Others (1980 E.L.T. 423) an identical question of rear dumpers and their exigibility under Item 34 of the First Schedule to the Central Excise Act was examined. Following the decision of the Supreme Court their Lordships of the Delhi High Court held that the manufacturer s description showed that the dumpers were designed for use on roads, of course at slower speed, because they have to carry great loads. Similar arguments as in this case were raised by both the parties and the Delhi High Court concluded that the definition of Motor vehicle as given in Item 34 would govern the issue and not what has been stated in other enactments or literature. Shri S.G. Sundaraswamy argued that the decision of the Delhi High Court would not apply to the present facts. We do not accept this contention because we see from the annexures to the show cause notice number of instances when the dumpers were driven on roads covering long distances. Vehicles have been sent to Ahmadnagar, Balimala, Akola and Poona etc. Letters to other State authorities (Regional Transport D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings had shown that the dumpers were reasonably suitable for being driven along the public roads in transit or for the purpose of carrying material from one site to another. Nor must it be thought that I am acceding to the appellants submission that the intention referred to in the relevant sections is the manufacturer s intention alone. It may be that the legislature had no particular person s intention in view, whether manufacturer s, wholesaler s, retailer s, owner s or user s. Intended...........for use on roads my mean no more than suitable or apt for use. I prefer, however, to express no concluded view on this point but to base my decision, following MacDonald v. Carmichael (2), on the ground that in no event does the evidence of very limited user in this case establish that the vehicles were intended for use on roads within the meaning of the statutes concerned. The above observation indicates that if the dumpers were reasonably suitable for being driven along the public roads, even in transit, it would have been held that they were intended or adapted for use on the road. The learned Counsel for the respondent also relied on the decision Maddox v. Storer reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also exempts off the highway dumpers in Tariff Item 34 in excess of 10% ad valorem. These subsequent notifications would be rendered redundant and nugatory if a contrary interpretation is placed on the tariff item. We are inclined to accept the Department s case in view of this factor also. 12. We also find that in Writ Petition No. 145/78 the Bombay High Court in Salgaocar Engineers v. Union of Indian and Others have observed In fact, though it seems that the Sicard dumpers are not normally used to transport goods and materials on roads and that they are mainly utilized off the roads, on rough terrains, to carry heavy materials from one place to another, namely, from the loading point to the dumping site, nevertheless the fact remains that they basically are a conveyance, since their main and dominant utility and purpose appears to be to transport materials from one place to another. 13. The learned Counsel for the respondents relied on the Letter of Intent issued by the Government which was later converted into an Industrial Licence under the Industries (Development and Regulation) Act, 1951. According to him, the licence was granted for the manufacture of earth moving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure and character of the product. 15. The learned Counsel urged that concessional rates of customs duty was applicable on import of components for manufacture of dumpers by the respondents and placed relevant notification in regard to it. But the criteria for grant of exemption under the Customs Act, 1962 appears to be on the basis of net weights and which is designed for use off the Highway. The same will not be relevant to the present controversy. The learned Counsel also placed before us several orders by the authorities where it was held that the respondents were not liable to pay Cess imposed under the Industries (Development and Regulation) Act, 1951. He relied on the Memorandum issued by the Ministry of Industry dated 1-6-1984 where it was confirmed that tractors, trailers and earthmoving equipment are not covered for levy of Cess. We are of the view that the levy of Cess on such types of vehicles are governed by different provisions and considerations and they have no relevancy to determine the present issue. Unless a Tariff Entry itself provides the basis for such a consideration reference to other enactments will have no bearing. 16. The respondents urged that these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the descriptions specifications of off Highway Dumpers (vide Handbook on Heavy Construction by Havers and Stubbs). He urged that the dumpers are more than 15 tonnes capacity and hence they are off the highway dumpers and therefore are not adapted for use on public roads. The consumption of fuel, and the price of these vehicles vary when compared to the other commercial motor vehicles. The tyre cost of Dumper varies from Rs. 76,045 to Rs. 33,702. The tyre life is 3000 hours on an average while the cost of a truck tyre is Rs. 3078. These features were pointed out in support of the contentions of the respondents. But in our view these factors by themselves will not conclude the issue. If these vehicles are adapted for use upon public roads, that would determine the classification. 19. The learned Counsel also urged that the dumpers are not adapted for use upon roads and that special permissions are required to pass over public roads. He drew our attention to the provisions in several Motor Vehicles Enactments which restrict the maximum permissible size and weight of the vehicle. He stated that these dumpers have been permitted by the authorities to pass over public roads. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 17-9-1979. The learned Counsel for the respondents urged that the show cause notice would be barred as under Section 36(2) of the Central Excises and Salt Act, 1944 as it stood then. Shri Laksmi Kumaran urged that the question of time bar is pending before the Larger Bench and in any event the assessment was not completed as there was a classification dispute. He stated that proviso (3) refers to period under Section 16A. Even though the Notification giving effect to Section 11A was issued on 27-11-1980, the assent was given to the amending provision of Section 11A on 6-6-1978. He stated that it was an incorporation by reference and even though section 11-A had not come into force on the date of the show cause notice, the period could be computed under Section 11-A. He urged that the second proviso to Section 36(2) would apply and the period will be one year. 24. We have given our careful consideration on the question of limitation. Section 11-A was given effect to on 17-11-1980. The proviso should be construed as one of legislation by reference. Even though Section 11-A had not come into force at that time the period set out under Section 11-A could be invoked. The third pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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