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TMI Blog1995 (12) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... t period in respect of Central Excise Duty paid by them on A.D.V. Hand Cart Tyres on the ground that since there was no specific heading/sub-heading for A.D.V. Tyres in the Central Excise Tariff Act, 1985, except sub-heading No. 4011.99 covering `other tyres , the same are classifiable under Heading 4011.99. But they paid Central Excise Duty @ Rs. 84 as B.E.D. (affective rate) plus 5% of B.E.D. as S.E.D. in terms of Notification No. 58/88-C.E., dated 1-3-1988 as amended by Notification No. 45/89-C.E., dated 1-3-1989. These refund claims were rejected by the Assistant Collector of Central Excise holding that the subject Tyres are classifiable under sub-heading 4011.91 and not under 4011.99 as claimed by the appellants. That it was not prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific description shall be preferred to the sub-heading providing the more general description. Hand Cart and Animal driven vehicles are primarily used off the road and, therefore, it would fall under sub-heading 4011.91 since it covers tyres of a kind used on vehicles or equipments designed for use off the road . He submitted that the reliance placed by the Collector (Appeals) on the Explanatory Notes to the HCDCS is misplaced because Heading 4011 in the Central Excise Tariff Act is not completely aligned to Heading 4011 of the Explanatory Notes. He also submitted that the respondents did not discharge the burden which lay on him to prove that the incidence of excise duty was not passed on to the customers. Elaborating he submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erring-bone or similar tyres as could be seen from the Explanatory Notes to HSN. He highlighted that a specific entry that is to sub-heading 4011.10 initially covering such tyres as are in question, was omitted with effect from 1-3-1989 and, therefore, when a specific entry gets omitted, the goods get consigned to the residuary entry. To strengthen his arguments he also submitted that Notification No. 58/88-C.E., dated 1-3-1988 also supports his contention inasmuch as it indicates that the tyres used for animal driven vehicles and hand cart vehicles are different from those tyres used in off the road vehicles. 5. As regards the contention of the Ld. SDR that incidence of duty in the instant case was not passed on to the customers, he sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, scrapers, front-end loaders, draglines, excavators etc. They are normally of the sizes 12.00-24 and above. Some of these tyres are also of the tubeless tyres. These OTR tyres are essentially equipped with extra heavy tread with rugged bar and block tyre patterns for high traction designed to operate on broken surface strewn with sharp, fresh blasted rocks and boulders as at mining, earth moving and construction sites. Special cut resistant and high abrasion resistant rubber compounds are used in their manufacture to resist damages by cuts and bruises. The revised Tariff Item 16 is worded in such a manner as to group these OTR tyres alongwith the tyres for motor vehicles, attracting a common effective rate of 55% ad valorem (vide S. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Note Sub-heading 4011.91 Pictures of some of the types of tyres which are covered by this sub-heading are reproduced below : 8. From the aforesaid notes and pictures it is evident that the sub-heading 4011.91 covers the tyres which are having a herring-bone or similar tread. In the instant case A.D.V. Hand Cart tyres are not of the size of 4 X 8 inches that is to say they are not of the size of 12.00-24 and above - a circumstances pointed out in the clarification issued by the Government of India in its General Circular 24/81, dated 1-3-1981, as extracted above. Besides, the use of these vehicles, on the road is a common sight and with the advancement in the science and improvements in the conditions of the road it is well-kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the customers it may be stated that the same issue was also the subject matter in the other appeal filed by the Revenue against the present appellants (Appeal No. E/5088/91-C and Appeal No. E/5094/92-C) and same contentions were raised by both sides therein which have now been again repeated before us for the prior period. And the Tribunal after considering the rival contentions and relying upon the case of Doller Co. v. Government of India, 1986 (24) E.L.T. 245 (Madras) held that the respondents had proved that incidence of duty was not passed on to the customers vide its Final Order No. 119-120/93-C, dated April, 1993 [since reported in 1995 (80) E.L.T. 410]. For ready reference the relevant paras 4 to 10 may be reproduced as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X
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