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TMI Blog1994 (1) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice dt. 22nd Oct. '90. In their detailed reply dt. 4-2-1991, the appellants had claimed that the goods are not Motor cars and that they had not been 'principally designed for transport of persons'. The goods were manufactured/assembled by them purely and primarily for use for amusement purpose in enclosed premises in parks, fairs, farm houses, court-yards, resorts. They are simply a toy for imparting amusement to the children. It is their further case that the item "Go-karts" are not roadworthy, by any stretch of imagination and that they had not been designed or manufactured or assembled for the purpose of transporting the persons. It is their further contention that no vehicle can ply on road unless it is certified by the Automobile Research Association of India (ARAI). The appellant had not applied for such road-worthiness certificate. The item also did not require registration from any transport authority anywhere in India, as Motor vehicle and no licence was also required for its plying in the enclosed places. The item was only a replica of cars, in miniature size and not a car as such. It did not have a starter, nor gears nor it could be reversed. The item was fitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was of a very small size to accommodate only two persons, and did not have gears, reverse gear, lights and also did not meet the road-worthiness. The Automobile Research Association of India had also issued a letter to the effect 'Go-kart' did not meet the requirement of a motor vehicle for use on public roads. Referring to Section 2(18) of Motor Vehicles Act, 1939, ld. Advocate submitted that the definition given therein of 'Motor Vehicle', should be as the Central Excise Tariff Act had given any definition of Motor Vehicle. In this context he referred to the ruling rendered in the case of Darshan Singh Pavitra Singh & Others v. Union of India & Others as rendered in the case of 1988 (34) E.L.T. 631, para 9, wherein, the definition of Motor Vehicle had been adopted. He further submitted that the department had not discharged their burden of classification and in this context relied on the rulings of the Hon'ble Supreme Court as rendered in the case of Atul Glass Industries Ltd. & Others v. Collector of Central Excise & Others as reported in 1986 (25) E.L.T. 473 and that of Oswal Agro Mills Ltd. v. Collector of Central Excise, 1993 (66) E.L.T. 37 and the case of Collector of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K.M. Meter e. Steering - Positive f. Electrical - Lights & Horn g. Wheels : (i) Pneumatic (ii) Spoked or solid (iii) Base -1,000-1270 mm (iv) Track - 750-900 mm. h. Brakes - On both rear wheels (wire linkage) i. Accelerator - Wire linkage j. Start - Push/Recoil k. Clutch - Centrifugal l. Fuel : (i) Petrol & Mobil oil Consumption : (ii) 25 Km/Litre app. Capacity : (iii) 3 Lt. app. m. Engine : (i) Power 2.5 BHP app. (ii) Single Cylinder (iii) Two Stroke n. Chassis - Tubular Steel Frame o. Body - PBS Sheet p. Overall Dimensions : (i) Length 2000 m.m. app. (ii) Width 850 m.m. app. (iii) Height 800 to 1000 m.m. q. Steering locking 40° app. both ways The Automobile Research Association of India by their letter dt. 8-7-1991, has clarified after perusing the technical details of the 'Go-kart' that this item "does not meet the requirement of a motor vehicle for use on roads". It is also on record that the item 'Go-kart' is not to be used on roads but only in enclosed areas. Now the question is as to whether the impugned item with these details is in a position to satisfy the requirement as specified in the tariff sub-heading 8702.00. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment has not placed any evidence of trade and commercial understanding about this item being considered as motor car or a motor vehicle principally designed for the transport of persons. The technical specification given by the appellant discloses that, although the design of the 'Go-kart' is like a motor car and has got the features of a motor car but yet it has not been designed for transport of persons. The 'Go-kart' has been principally designed for the purpose of amusement as has been contended by the appellants. The appellants have stated in the technical brochure that it could be used in enclosed premises like farm houses, court yards and resorts. The appellant has not claimed in their technical brochure that this use within the enclosed premises is for the purpose of transporting persons. Their main claim is that it is principally designed for amusement for children. The adults may also join with the children in amusing themselves, but that by itself would not make the item a motor car or a motor vehicle designed for transport of persons. In that view of the matter, the classification adopted by the department under sub-heading 8703.00 of Central Excise Tariff '85 is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile Central Excise Tariff i.e. First Schedule to the Central Excises & Salt Act, 1944 had given a definition of 'motor vehicle', based on the Motor Vehicles Act, in the following manner :- "Motor vehicles means all mechanically propelled vehicles, other than tractors, designed for use upon roads' Tariff Item 34 read as : "Motor Vehicles and Tractors, including Trailers". Present tariff, by not adopting the definition of motor vehicles, as stated above, has to be interpreted in a different manner without the use of the said definition. 7.4 No evidence of 'Motor Vehicle', as known to Commercial Circles, has been brought on record by the respondents. On the other hand, pamphlet of the appellants themselves and their sales to various customers, such as a Transport Company, industrial houses, hotels. Tea Estates support the department's contention that 'go-kart' is meant for transport of persons in large private areas/estates serving the purpose of a 'motor vehicle'. Sale invoices indicate 'two seaters' meaning transport of two persons. Although, the 'goods' under consideration have been sold under the nomenclature 'go-kart' - the trade name of the goods, no doubt is left abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be reasonable to construe it with reference to the meaning given to it in other enactments. In this respect, ld. Counsel cited and relied upon the M.P. High Court decision reported in 1980 (6) E.L.T. 598 in the case of Chemical Industries v. Union of India and on Gujarat High Court decision in Sonali Textile Corporation v. Union of India reported in 1986 (23) E.L.T. 433. It was held that the definition of drugs in Drugs & Cosmetics Act could be considered for classification under Central Excise Tariff. The ld. Counsel further submitted, relying upon Asian Paints v. Collector of Central Excise -1988 (35) E.L.T. 3 (SC) and 1988 (37) E.L.T. 480 (SC) in the case of Krishna Carbon Co. v. Collector of Central Excise that tariff item is to be construed in accordance with commercial understanding and also urged that how a manufacturer advertises his product is most conclusive for its classification under the tariff for which the ld. Counsel cited Madras High Court decision in the case of T.S.R. & Co. v. Union of India, 1985 (22) E.L.T. 701 (Mad.). The Ld. Counsel pleaded that the order proposed by Hon'ble Member (Judicial) is just and fair. 13. Shri K.K. Dutta, ld. D.R. contend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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