9911796707
TMI Blog2000 (10) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of duty) of the schedule appended to the CETA whereas the Revenue has sought its classification under Chapter 87 (sub-heading 8705.00) of the schedule appended to the CETA. 2. The appellants are manufacturer of two wheeled motor vehicles falling under Chapter 87 of the schedule appended to the CETA. They on 24-10-1996 filed a declaration under Rule 173-B of the Central Excise Rules for classification of their new product named Hero Basic i.e. four wheeled motor vehicle and claimed its classification under Chapter 95 (sub-heading 9501.00) of the schedule appended to the CETA. But the Assistant Commissioner did not accept their classification and through order in original, dated 5-2-1997 ordered the classification of their product un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as such deserves to be classified under sub-heading 9501 of the CETA. He has referred to the corresponding Chapter 97 of the HSN which according to him is fully aligned to the Chapter 97 of the CETA and further argued that nomenclature of this chapter of the CETA and of HSN is the same except a minor difference in two headings not relevant to the goods in question and that the HSN Entries, have to be preferred and relied on for resolving the dispute regarding the classification of the product in question, in view of the ratio of the law laid down by the Apex Court in CCE, Shillong v. Woodcraft Products Ltd., 1995 (77) E.L.T. 23 (S.C.) and also by the Tribunal in :- (1) Swarup Ribres Industries v. CCE [1999 (105) E.L.T. 348 (T)] = ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady a seasoned driver. The Technical Highlights of this vehicle mentioned in the pamphlets are, that it has got single cylinder, two stroke, Air cooled, Displacement-49 CC, Flywheel magneto ignition system, Electric start, crankshaft to rear wheel through centrifugal automatic clutch, single speed constant mesh gear train and roller chain. In this pamphlet, the product Hero Basic had not been described as children s toy or car, but as a training-cum-recreation mobile meant for giving driving training to the children. 9. Under Chapter 95 of the CETA the Expression wheeled toy had not been defined. However, in the corresponding Chapter 95 of the HSN, it has been specified that these toys include : (1) Children s tricycles and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of law as laid down by the Apex Court in CCE, Shillong v. Woodcraft Ltd. supra, and in the cases decided by the Tribunal (detailed above) that dispute regarding the Tariff classification so far as possible should be resolved with reference to the nomenclature indicated by the HSN. In the instant case, the dispute to be resolved is, as to whether the product of the appellants is classifiable under Heading 87.05 or under Heading 95.01 of the CETA with reference to the HSN Notes of both these Chapters referred to above. But for this purpose, the nature of the product, the price, the mode and manner in which it has been described in the advertising pamphlets or brochures for sale to the public, and the manner in which it is being cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants that the vehicle is a children s car or toy, designed to be ridden by the children and as such is classifiable under Chapter 95 of the Tariff read with the corresponding Chapter of the HSN, cannot be prima facie accepted in the light of what has been described by them in their advertising pamphlet, referred to above. They have not described the vehicle as a children s car or children s toy in the pamphlet. Moreover, the appellants are admittedly exporting this vehicle, but they have not produced copies of their export entries, bill of lading to show that this product had been described therein as children s car or wheel toy for the children. They have also not disclosed by placing any material on record the classification claimed or ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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