9911796707
TMI Blog2013 (3) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... it is hazardous to interpret a word in a statute, in accordance with its definition in another statute or statutory instrument and more so when such statute or statutory instrument is not dealing with the cognate subject. Thus meaning of the term “Automobile” in Entry No. 100 of the Third Schedule to the Central Excise Tariff Act, 1944 should therefore, be understood on the basis of how the term “Automobile” is understood in the cognate statute of Central Excise Tariff Act, 1985 and its schedule. The definition of “Automobile” in Motor Vehicle Act, 1988 or Air (Prevention and Control of Pollution) Act, 1981, which deal with altogether different subjects, cannot be adopted for construing this term in Central Excise Act, 1944. When in the schedule to the Central Excise Tariff Act, WTLB and VC are understood as construction machinery falling under Chapter 84 and not as “Automobile” of Chapter 87, it would be totally wrong to apply definition of the term “Automobile” in Motor Vehicle Act, 1988 and Air (Prevention and Control of Pollution) Act, 1981 which are for altogether different purposes, and hold that this term covers WTLB and VC also. More so, when the Board’s Circular No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period till 28-4-2010, Sl. No. 100 of the third Schedule to the Central Excise Act, 1944 covered - parts, components and assemblies of automobiles falling under any chapter heading. There is no definition of the term Automobile in that schedule or in the Central Excise Act, 1944. With effect from 29-4-2010, Sl. No. 100 of the Third Schedule was substituted by Sl. No. 100 and 100A and while the Sl. No. 100 covers parts, components and assemblies of vehicles (including chassis fitted with engine) falling under Chapter 87 excluding the vehicles falling under Heading Nos. 8712, 8713, 8714 and 8716 , the Sl. No. 100A covers parts, components and assemblies of goods falling under heading Tariff Item No. 84264100, 8427, 8429 and the sub-heading 843010 . The dispute in this case is as to whether during the period of dispute, the repacking of the goods - parts of WTLB and VC for their retail sale would amount to manufacture. According to the Department during the period prior to 29-4-2010, the word Automobile in the Entry No. 100 of the 3rd Schedule would cover even the WTLB VC in terms of definition as given in Section 2(28) of the Motor Vehicle Act, 1988 and Section 2(e) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 1.3 Against this order of the Commissioner, these two appeals have been filed along with stay applications. 2. Heard both sides in respect of stay applications. 3. Shri Madhav Rao, Advocate, the learned Counsel for the appellant, pleaded that there is no dispute about the fact that WTLB and VC are construction machinery classifiable under Heading 84.29 and 84.30 respectively and their parts are classifiable under Heading 84.31, that in terms of the Board s Circular dated 16-12-2008 for the purpose of Entry No. 97 in Notification No. 2/2006-C.E. (N.T.) issued under Section 4A of Central Excise Act, 1944, which is identical to the Entry No. 100 of the Third Schedule to the Central Excise Act, 1944, the term Automobile should be construed in the light of its definition in Automobiles Cess Rules and on that basis the WTBL and VC being earth moving machinery would fall outside the purview of the term Automobile and hence the parts of WTLB and VC would not be covered by the expression parts, components and assemblies of Automobiles , that the clarification issued by the Board is binding on the department, that the term Automobile appearing in Sl. No. 100 of the third Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how the Board s Circular mentioned above would not be applicable, that even if the Department s plea that the re-packing of the goods for retail sale amounts to manufacture and would attract central excise duty, is accepted, the appellant would be eligible for Cenvat credit of the duty paid on the components, as the components packed for sale as spares were duty paid, that the Commissioner has not given any finding as why Cenvat credit would not be available, that in any case, the appellant s duty liability in respect of clearance of parts of WTLB and VC during period prior to 29-4-2010, after permitting the Cenvat credit would be very small, against which the appellant have already paid an amount of Rs. 60 lakhs besides furnishing bank guarantee for an amount of Rs. 1,15,84,774/-, that as regards the clearance w.e.f. 29-4-2010 to 30-6-2011, the appellant have already paid an amount of Rs. 1,79,75,486/-, that in view of the above position, the amount already paid by the appellant is sufficient for hearing of these appeals and hence, the requirement of pre-deposit of balance amount of duty demand, interest and penalty may be waived for hearing of the appeals and recovery thereof may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be covered under Heading No. 8431. However, during the period till 28-4-2010, Sl. No. 100 of the 3rd Schedule to the Central Excise Act, 1944 covered parts, components and assemblies of Automobiles . In terms of the provisions of Sec. 2(f)(iii) of the Central Excise Act, 1944, in respect of the items appearing in 3rd Schedule, the packing or re-packing in unit container or labelling or relabelling of containers including declaration of alteration retail sale price or subjecting the goods to any process to render the same marketable to the consumer, would amount to manufacture. The point of dispute is as to whether during the period prior to 29-4-2010 the parts of WTLB or VC would be covered by the term parts, components and assemblies of automobiles , appearing against entry No. 100 of the 3rd Schedule. For answering this question, the key question which has to be answered is as to what is the meaning of the term Automobile in Entry No. 100 of the Third Schedule whether the meaning of this term in the context of central excise tariff or its meaning in common parlance is to be adopted or whether the definition of this term as given in Motor Vehicle Act, 1988 or Air (Preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch deal with altogether different subjects, cannot be adopted for construing this term in Central Excise Act, 1944. When in the schedule to the Central Excise Tariff Act, WTLB and VC are understood as construction machinery falling under Chapter 84 and not as Automobile of Chapter 87, it would be totally wrong to apply definition of the term Automobile in Motor Vehicle Act, 1988 and Air (Prevention and Control of Pollution) Act, 1981 which are for altogether different purposes, and hold that this term covers WTLB and VC also. (3) In the case of M/s. Central Coalfields Ltd. Others v. State of Union and Others (supra) the issue involved was as to whether M/s. Central Coal Field Ltd., engaged in mining activity, and using dumpers and rockers in the mines were required to register the dumpers and rockers under Motor Vehicle Act, and pay tax in respect of the same under Sec. 6 of the Bihar Orrisa Motor Vehicles Taxation Act, 1930. The Apex Court in the context of Motor Vehicle Act, held that the dumpers and rockers are motor vehicles requiring registration with the road transport authority. In case of Bose Abraham v. State of Kerala (supra), the dispute was as to whether the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
