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TMI Blog2007 (10) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... lants under Chapter Heading No. 87.02 to the schedule to the Central Excise Tariff Act, 1985 instead of Chapter Heading No. 87.03 for availing benefit of paying lower rate of Central Excise duty. An investigation was carried out, which resulted in issuance of show cause notice dated 27-4-93 for the extended period and other show cause notices for subsequent period. The appellants agitated the matter before the adjudicating authority on various grounds. The adjudicating authority did not accept the contentions of the appellants and confirmed the demand and also imposed penalties. 4. Aggrieved by the said order, the appellants preferred a stay application and appeal to the Tribunal. The matter came up for hearing on the stay application on 19-9-2005 and after hearing both sides the Tribunal vide its order No. S/646/WZB/MUM/2005/EB/C-III dated 30-11-2005 directed the appellants to deposit an amount of ₹ 54 crores and also furnish a bank guarantee of equivalent amount. Aggrieved by such order of the pre-deposit, the appellants moved the Hon ble High Court of Judicature at Bombay in writ petition No. 194/2006. Their Lordship quashed and set aside the order dated 30-11-2005 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Tribunal dated 30-11-2005 was correct. On being pointed out, he submits that the stay order has been quashed by the Hon ble High Court. The Ld. Sr. Counsel draws our attention to the fact that dimensions of the vehicle very clearly indicate that the vehicles, which are sought to be classified under Chapter Heading No. 87.02 could not have accommodated ten passengers. He submits that this fact was noticed by the investigating officer during the course of investigation. He submits that the adjudicating authority has correctly come to the conclusion that the appellant had knowing fully well that their vehicle do not conform to specifications of Rules 79, 82 84 of the Maharashtra Motor Vehicle Rule 1988, still cleared the vehicles as falling under Chapter 87.02 claiming the benefit of reduced excise duty. He submits that reliance placed by the appellant on the certificate issued by the Automotive Research Association of India (ARAI), Pune, is of no consequence as the said road worthiness certificate issued by the Automotive Research Association of India does not have any statutory authority. He submits that the certificate issued by the Regional Transport Officer that vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is the revenue s contention is that the vehicles would merit classification under Chapter No. 87.03. The rival contentious entries are as under :- On perusal, the relevant entries under chapter 87 of the CET, prior to 1-3-92 are as follows:- CHAPTER 87 VEHICLES OTHER THAN RAILWAY OR TRAMWAY ROLLING, STOCK AND PARTS AND ACCESSORIES THEREOF Note: 3 : For the purpose of CHN 87.02, the expression public transport type passenger motor vehicles means vehicles designed for the transport of 10 persons or more (including the driver). Heading No. Sub-heading No. Description of goods Rate of duty 87.02 8702.00 Public transport type passenger motor vehicles 25% 87. 03 8703.00 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading No. 8702) including station wagons and racing cars 60% I observe that in the Union Budget for the fiscal 1992-93, the chapter note under chapter 87 was merged with the heading t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is claimed by the assessee. Thus, the claim of the assessee that vehicles are public transport type ten seater could not be sustained. Further under the Rule 79 (7) of MMVR 88 the transport vehicles should carry weight @ 68 Kgs weight as standard weight of each passenger including weight of personal belongings. As per Rule 82 and Rule 84 of MMVR 88 a load of 14 Kgs or 30 Kgs per person a personal belongings are permitted to be carried along with the person. Thus, a transport vehicle should carry minimum weight of 82 Kgs or 98 Kgs of load per person including his personal belongings. However, the said vehicle can carry 700 Kgs of maximum load. Thus, carrying capacity of weight of vehicle in question is much less than the required weight under MMVR 88 for public private transport vehicle. Thus the claim of the assessee that the vehicle is of capacity of 10 persons including driver as public transport vehicle could not sustained by dimension of seating capacity. The same claim also could not be sustained for public private transport vehicle on basis of capacity of load by weight that is required to be carried by such vehicles . 10. When the said appeal came up for hearing befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19-7-2005 in the Supreme Court, the Supreme Court had declined to grant any stay of operation of our order despite being sought by the revenue. As such, we are in agreement with the proposition of the Ld. Counsel for the appellants that mere admission against an order of the Tribunal would not indicate a stay of operation. It has to be noted here that the very same classification lists were being challenged by the revenue by issuance of the show cause notice dated 27-4-93 on the ground that revenue has unearthed same additional information. 12. The adjudicating authority while upholding the confirmation of demand in this case has come to the conclusion that the classification of the vehicle has to be made under Chapter Heading No. 87.03 on the following findings :- Rules 79(7), 82 and 84 of MMVR 1989 laid down the standard weight of each passenger and the weight of personal belongings carried by each stage carriage and private service vehicle to be 68 Kg, J4 Kg and 30 Kg respectively. Therefore, in view of Section 2 (4) of the MV act 1988 read with Section 2 (47) and 2 (35) a stage carriage being a transport vehicle should be capable of carrying not less than 82 Kg of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced any contrary evidence to suggest that the seating capacity of the vehicle was not as has been given by the Transport Commissioner. 14. As such, we are of the view, that, since the classification list pertaining to the very same period has attained finality in respect of the very same appellants, the same cannot be challenged in the subsequent proceedings until the order is reversed by high judicial forum. Further, we are also fortified in our above views that the said vehicles manufactured by the appellants would merit classification under Chapter Heading No. 87.02 and that the provisions of Maharashtra Motor Vehicle Rules are not relevant for the purpose of determination of classification of the vehicle, by our Stay order No. S/1758/WZB/06/C-II (EB) dated 16-11-2006 [2007 (209) E.L.T. 408 (Tri. - Mumbai)], in which the Tribunal was considering the very same issue of classification of an identical product through named differently i.e. Mahindra Armada . On the factual matrix, the issue involved in that case is same as it is before us today and in respect of the very same appellant s factory at Nasik. 15. In our view, the very basis on which the Commissioner has held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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