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TMI Blog2016 (7) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... building body of the ambulances on such chassis. The period of dispute is from 1.4.2005 to 13.11.2009. In this case two issues have arisen one is with regard to the valuation of the ambulances with complete body whether it should be valued on cost construction basis or on the basis of the sale price of the ambulances to independent buyers, by the second appellant. The second issue is that the first appellant has paid duty under heading 87.02 of the Central Excise Tariff whereas the department is proposing classification under heading 87.03 of the Central Excise Tariff. 3. Learned Counsel for the appellant submitted that the issue No. 1 regarding valuation of ambulances has been settled against the appellant in the case of Audi Automo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not covered under 87.02 can be brought under heading 87.03 and Tariff Item at eight digit level cannot expand the scope of the description of Heading and hence only ambulances which can carry six persons or less will come in that tariff item. He also submitted that there is no dispute about the ambulances in question was designed for carrying more than six persons. In fact these vehicles are capable of carrying 14 persons including driver. Therefore, vehicles are classifiable under heading 87.02 and on that ground they are not liable to pay duty as per classification under heading 87.03. 5. He further submitted that for the period prior to that in their own case reported in 2005 (181) ELT 90 (Tri.-Del.), this Tribunal held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons. After going through the tariff heading only it is to determine whether the vehicle is for transport of more than 10 persons or not as classification of vehicle under heading 87.02 or 87.03 is to be decided on the basis of sitting capacity of the vehicle only. As per heading 87.03 it is clearly mentioned that the said classification shall be applicable to the vehicles which are not covered under heading 87.02 9. Primary test is that sitting capacity of the vehicle. Admittedly vehicle in question can carry more than 12 persons excluding the driver or 14 persons including the driver. Therefore, we hold that the vehicle in question is classifiable under heading 87.02 of CETA. 10. During the course of argument, it was pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be made under Rule 10A of Central Excise (Valuation) Rules, 2000. Therefore, we hold that the appellants are liable to pay duty on the value arrived at under Rule 10A of the said rules. 13. During the course of arguments learned Advocate for the appellants submitted that the appellants have already paid duty as per value arrived in terms of Rule 10A of the rules. Therefore, the same may be considered at this stage. As contended by the learned Counsel that they have paid duty as per Rule 10A, this fact has to be examined by the adjudicating authority whether the appellants have paid duty as per Rule 10A or not. 14. With these observations, the following order is passed:- (a) the appellant is liable to pay duty as per Rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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