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TMI Blog2015 (4) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... hicle is made based on the seating capacity of passengers, the statutorily stipulated specifications and norms have to be complied with. Viewed from this perspective, there is merit in the argument that these specifications should be tested/examined by the competent authorities before a vehicle can be categorised as a 10 seater or 11 seater, etc. From the documents available on record, it is seen that the various certificates given by the road transport authorities or by ARAI, are merely based on the declarations made by the appellant and not on the basis of any objective data specified in any industry standards or statutory provisions governing motor vehicles and therefore, these certificates do not inspire any confidence as regards their acceptance and not much reliance can be placed on them. From the various statements recorded from the officials of the appellant firm, it prima facie appears that attempts have been made by the appellant to project their vehicle as belonging to a particular type so that their excise duty liability can be minimized. - once classification list has been approved, the excise authorities can take a different view. It is not merely the weight of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al discipline. Since this has not been done, we set aside both orders and remand both the appeals back to the Tribunal and request its President to constitute a larger Bench of three Members to decide the issue whether the vehicles manufactured by the Assessee falls under Entry 87.02.00 or 87.03.00 of the Act." 2. The issue involved in these appeals relates to classification of motor vehicle model Nos. Commander 750 DP (10 Seater), Commander 650 DI (10 Seater) and Commander 750 DP (ST) manufactured by the assessee, M/s Mahindra and Mahindra Ltd., in their Kandivli and Nasik factories during the period from 01/04/1991 to 22/07/1996. The department's contention is that these vehicles merit classification under tariff heading 87.03 of the Central Excise tariff, whereas, the appellant claims classification under tariff heading 87.02. 2.1 Appeal No. E/394/01 filed by the Revenue is against Order-in-Appeal No. ZBN/354/MV/2000 dated 1-11-2000 passed by the Commissioner of Central Excise (Appeals), Mumbai-V. Revenue had filed an appeal before the lower appellate authority against the classification of motor vehicles manufactured by the appellant's unit at Kandivli vide Class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at and Maharashtra, have classified the vehicle as an "omni-bus"in the non-transport category capable of carrying 10 person. The Transport commissioners in Karnataka and Pondicherry have registered the vehicles as a ten-seater without any categorization. Therefore, there is no doubt that the vehicles manufactured by the appellant are capable of carrying 10 persons or more. (3) The adjudicating authority in his order dated 30/03/2005 has sought to classify the vehicle under 8703 mainly on two counts, - (a) length/width of the seats (when taken as the dimensions of carcass/frame) falls short of the requirement for seating 10 persons by a few millimetres, in respect of the vehicles manufactured in Kandivli factory; (b) the pay load of the vehicles fall short of the requirements where weights of both the passenger and the cargo are taken into account. These findings of the adjudicating are clearly wrong. (4) The tariff descriptions of the relevant headings speak of vehicles for the transport of persons only and does not mention anything about the cargo. Therefore, the question of taking weight of cargo would not arise at all. If the weight of the passengers are taken into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity of 10 persons mentioned in their certificate has been verified by loading the vehicle with that number of persons, neither the seating layout drawing nor dimensions of the seat were provided and ARAI did not have the statutory authority to verify the seating capacity of the vehicle. (c) The Transport Commissioner has wrongly categorized the vehicle as "omnibus under non-transport category" as no such category existed prior to 24-11-92. The Transport authority has certified the seating capacity based on the certificate issued by ARAI and the appellant had not submitted any copy of the blue prints having seating details. Therefore, the certificate issued by the said authority is on wrong premises. (d) As per Rule 171 of the Maharashtra Motor Vehicle Rules, 1989, a reasonably comfortable seating space of not less than 381mm was to be provided. Therefore for a two seater, minimum seating space required is 762mm. As per the panchnama drawn in this regard, the dimensions were found to be 744mm in length and 352 mm in width. Thus the two seats placed in the rear-side of the vehicle could accommodate only one person and not designed to carry two persons as claimed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant Chapter Notes and heading description are as below:- During the period 1-4-91 to 28-2-92 Chapter 87 - Vehicles other than Railway or tramway rolling stock and parts and accessories thereof Notes: 1. ......................... 2. ......................... 3. For the purposes of heading No. 87.02, the expression 'public-transport type passenger motor vehicle' means vehicles designed for the transport of ten persons or more (including the driver). Heading No. Sub-heading No. Description of goods Rate of duty 87.01 8701.00 Tractors (other than tractors of heading No. 87.09) 15% 87.02 8702.00 Public transport type passenger motor vehicle 25% 87.03 8703.00 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading No. 87.02), including station wagons and racing cars 60% 87.04 8704.00 Motor vehicles for the transport of goods 25% 87.05 8705.00 Special purpose motor vehicles, other than those principally designed for transport of persons or goods (for example, .....) 25% From 1-3-92 to 22-7-1996 Chapter 87 - Vehicles other than Railway or tramway rolling stock and parts and accessories thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in cases of "no fault liability"and in hit and run motor accidents; (j) provision for payment of compensation by the insurer to the extent of actual liability to the victims of motor accidents irrespective of the class of vehicles; (k) maintenance of State registers for driving licences and vehicle registration; (l) constitution of Road Safety Councils. The Act also seeks to provide for more deterrent punishment in the cases of certain offences. For this purpose, the said Act provides for classification of vehicles into various categories such as - contract carriages, stage carriages, goods carriages, heavy goods vehicles, medium goods vehicle, heavy passenger motor vehicle, invalid carriages, light motor vehicle, maxi cabs, medium passenger motor vehicles, motor cabs, motor cars, omni bus, private service vehicle, public service vehicle and so on. 5.3 Both Chapter 87 of the Central Excise Tariff Act, 1985 and the Motor Vehicles Act, 1988, deal with the same subject matter of classification of motor vehicles, one for the purpose of taxation and the other for the purpose of road transport management. In other words they can be considered as pari materia, that is, st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As per section 2(29) of the Motor Vehicles Act, 'omnibus' means any motor vehicle constructed or adapted to carry more than six persons excluding the driver. As per section 2(33), "private service vehicle"means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for or in connection with his trade or business otherwise than for hire or reward but does not include a motor vehicle used for pubic purposes. Sections 2(35) defines public service vehicle as any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi-cab, a motor-cab, contract carriage and stage carriage. Section 2(21) of the Act defines a "light motor vehicle"as a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weigh of any of which, does not exceed 7500 kilograms. Section 2(22) defines a maxi-cab as any motor vehicle constructed or adapted to carry more than six passengers, but not more than 12 passengers, excluding the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the safety of the passengers travelling in the vehicle. Therefore, when the classification of vehicle is made based on the seating capacity of passengers, the statutorily stipulated specifications and norms have to be complied with. Viewed from this perspective, there is merit in the argument that these specifications should be tested/examined by the competent authorities before a vehicle can be categorised as a 10 seater or 11 seater, etc. 5.8 As regards the contention of the appellant that the various State Road Transport Authorities have registered their vehicle as 10/11 seater, we find that this issue has not at all been examined by these authorities in terms of the standards stipulated in the Statute. The Transport Commissioner, Mumbai in his letter dated 26/11/1992 to the Investigating Agency, has stated that the Motor Vehicles Rules, 1989 is silent on the dimensions of seats for determining the seating capacity and the words "reasonable comfortable seating space"are construed to mean that the outer limit of the seat which is capable of affording firm support to the weight of a person is considered while measuring the dimensions. This is contrary to the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturer including the chassis, body, engine, engine fluids, accessories, driver, passengers and cargo but excluding that of any trailers". Thus it is not merely the weight of the passenger but also that of the cargo permitted to be carried that is relevant in determination of the gross vehicular weight. Hence, the argument that only the weight of the persons needs to be taken into account for determining payload and not that of the personal belonging/cargo, is not prima facie convincing. As per the technical literature published in various web-sites, another important feature in vehicle design is the wheel base (the difference between the front and rear wheels) as it impacts weight distribution and aerodynamics of the vehicle. The components that decide the wheelbase are also the major masses in the car (driver, engine, gearbox, etc.) and by placing these strategically along the wheelbase, a more forward or rearward weight bias can be achieved. Thus the dimensions of the wheel base directly impacts the axle weight. 5.10 From the various arguments made by both the sides, it appears to us that the matter needs careful and detailed examination with the assistance of a technical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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