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TMI Blog2014 (1) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... utory and other provisions are required to be made and further more detailed consideration of all the records is also required - the appellants directed to deposit Rupees Twenty crores as pre-deposit – upon such submission rest of the duty to be waived till the disposal – partial stay granted. - E/2715/2010 and 1815/2011 - Misc. Order Nos. 25755-25756/2013 - Dated:- 29-4-2013 - Shri P.G. Chacko and B.S.V. Murthy, JJ Shri G. Shivadass, Advocate, for the Appellant. Shri P.R.V. Ramanan, Special Counsel, for the Respondent. ORDER The issue involved in both the appeals is the correct classification of vehicles Mahindra Bolero Camper and its variants. The details of appeals numbers and amounts involved are as under :- Appeal No. E/2715/2010 E/1815/2011 Period involved July, 2008 to March, 2009 April, 2009 to December, 2009 January, 2010 to October, 2010 Date of issuance of Show Cause Notice 7-7-2009 10-3-2010 4-1-2011 Order-in-Original No. date 5/2010-C.E., dated 28-9-2010 13/2011-(C.E.)-Commr., dated 18-4-2011 Duty demanded Rs. 49,12,14,945/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, Division : Hyderabad C, 2nd Floor, Phosnet Bhavan, Ram Koti, Tilak Road, Hyderabad - 500 001. Madam, Sub : Change in Classification of Bolero Camper Motor Vehicles cleared from our factory at Zaheerabad. 1. As you are aware, we are engaged, inter alia, in the manufacture of Motor Vehicles falling under Chapter Heading 8702, 8703 and 8704 in our factory at Zaheerabad. 2. One of the vehicles which we are manufacturing is Bolero Camper . This vehicle is a vehicle designed for carrying goods and passengers (including the driver). This has a load body which can carry between 617 kgs. to 768 kgs. of cargo (depending upon the model). This vehicle also has tow cabins which provide for two rows of seating (for seating 4, 5 and 6 passengers - including driver). A photograph of the vehicle is annexed as Annexure-1. Copy of the certificate for compliance with the Central Motor Vehicle Rules which are obtained from Vehicles Research Development Establishment (VRDE for short) is submitted herewith as Annexure-2 (collectively). 3. It would be evident from these documents that the above vehicle is designed principally more for carriage of goods and incid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. The Dept. issued a Show Cause Notice to them seeking to differential duty on the same on the basis that the appropriate classification was under 8703, as these vehicles would be covered by the definition of Station Wagon , as defined in Chapter Note 6 of Chapter 87 of the Central Excise Tariff. The matter came up for hearing before the Commissioner of Central Excise, Pune, who has now passed a detailed order dated 19-11-2007 holding that the vehicle was indeed classifiable under 8704 and subjected to duty under Central Excise Tariff 87.04 relying upon the decision of the Hon ble Tribunal as upheld by the Hon ble Supreme Court referred to in para 4.1 above. A copy of this order is annexed hereto as Anexure-5. 4.3 In order to align ourselves to the accepted classification, as has also been upheld by the Commissioner of Central Excise, Pune in respect of an identical vehicle in respect of Tata Motors Limited, we would be effecting clearance of the said vehicle under 8704 payment of duty applicable to 8704.21.90 with effect from 1st July 2008. This is for your kind information. Yours faithfully, For MAHINDRA MAHINDRA LTD. (Signed) Authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove would also show that it was only between 1997 to 2000 Budgets, the word station wagon was not in existence in the Tariff Heading 8703. 5. Having dealt with on the controversy involved and the Tariff description during the relevant time, we now proceed to take up the issue involved for consideration. The Commissioner has come to the conclusion that the vehicles in dispute are to be classified under Heading 8703 on the following grounds :- (1) Based on the detailed photograph of the vehicles, product catalogues of the assessee, the assessee themselves claimed the following major features in the classification of the vehicles which is under dispute :- (a) Luxurious seating capacity for 4 to 6 passengers including driver, (b) Seat belt for passengers, (c) Superb air conditioning systems for passengers, (d) Luxury status of the vehicle; and (e) Strong cargo box in the rear. According to the learned Commissioner, all the features of vehicles satisfy the claim of the assessee that the vehicles are meant for long luxurious drive and cargo box in the rear is having subsidiary function. (2) The appellant themselves were classifyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill for the year 2000 and further, there is no evidence that the products in the present case are similar to one that are referred to in the said case law. (9) As regards the decision of the Commissioner of Central Excise (Appeals) Pune-1, he has rejected the same on the ground that it cannot be construed on the binding precedent. 6.1 The learned counsel on behalf of the appellant submitted that the issue is already settled by decision of the Tribunal in the case of M/s. TELCO Ltd. and the appellant themselves had mentioned the same in their letter. Even though the decision in the case of TELCO Ltd. and the disputes related to the period prior to 2000, the Tribunal while considering the issue had discussed the words principally designed for transport of persons which is the main requirement for classifying the vehicles under CETA 8704. 6.2 We are unable to accept this submission for the following reasons : (a) During the relevant time, the chapter note relating to station wagon was not in existence. In fact the decision of the Tribunal came for the period between 1996-2000 during which the chapter note relating to station wagon was not incorporated in the Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned special consultant that unlike goods which can be stored on top of each other and require less space to store as compared to the persons who cannot be made to set on top of each other, the consideration of the quantity that can be transferred is not very relevant. It was his submission that the Commissioner has rightly considered the quantum of space actually required for persons and for goods to come to the conclusion. It was his submission that this issue was not argued in depth before the Tribunal and that the Tribunal had made observations on the basis of WCO ruling and therefore while taking a decision on this the benefit of submissions by the Revenue on this aspect were not available to the Tribunal. (e) The learned special consultant also took us through the photographs of the vehicles and advertisements published by the appellants. He submitted that the fact that major features of the vehicles are (a) luxurious seating for persons (b) seat belt for passengers (c) air conditioning are normally provided when the vehicles are principally designed for transport of persons. Further he also took us through the advertisements. In one of the advertisements, the vehicles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is meant for people who are adventure seekers and would like to go to place where normally personal may not go. (g) Another factor that had been considered by the Tribunal in the case of TELCO is that the vehicle under discussion there was mainly meant for transport of goods and the use for passenger transport was incidental. In this case prima facie we agree with the arguments of the special counsel that it is the transportation of goods which is incidental. (h) The learned special counsel for the Revenue also submitted that the very fact that the appellants continued to classify their vehicle under 8703 for more than 6 years also would support the case of the Revenue. However in the rejoinder, the learned counsel submitted that they were waiting for conclusion of another show-cause notice issued to TELCO which was concluded with the order of Commissioner (Appeals). In any case in our opinion this should not be and cannot be the ground for rejecting the claim of the appellants if the vehicles are otherwise to be considered as meant for transportation of goods. (i) Another reason why we would not like to blindly follow the decision of the Tribunal in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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