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TMI Blog2022 (5) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 covers a group of non-mechanically propelled vehicles. Chapter Note 5 to the Chapter 87 creates a fiction whereby building a body or fabrication or mounting or fitting of a structure or equipment on a chassis, falling under Heading 8706, shall amount to manufacture of a motor vehicle -. In terms of the legal fiction, since the appellant is mounting or fitting bulkers on the chassis falling under Chapter 8706, Appellant is deemed a manufacturer of motor vehicle and since the said vehicle is used for transportation of goods viz. fly Ash /cement etc, Appellant is a manufacturer motor vehicle falling under 8704. From the description of the articles and the use to which they put, it is found that heading 8704 is the most appropriate. The view taken by the Adjudicating authority that Bulkers mounted on chassis is classifiable under Chapter heading no. 8716 is incorrect. There is no dispute that after fabrication of bulkers appellant undertaking the process of mounting it on chassis and in the same form they were clearing it as complete and integrated motor vehicle for transport goods. Further Chapter heading 8716 would be applicable for fabrication of bodies for trailers /semi-tai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Prev.), Ahmedabad-I as to why: i) The semi-trailer type of Bulker (attached to horse‟) manufactured should not be classified under Chapter sub-heading 8716 of the Central Excise Tariff Act, 1985 and the Bulker manufactured which are mounted on the chassis, should not be classified under Chapter Sub heading 8707 of the Central Excise Tariff Act, 1985. ii) Central Excise Duty of Rs. 47,63,915/- leviable on the above both types of bulkers being manufactured and cleared, should not be demanded and recovered under the provisions of Section 11A(1) of the Central Excise Act, 1944. Already paid amount of Rs. 8,00,000/- under protest should not be appropriated and adjusted against the duty liability. iii) Interest should not be charged and recovered under the provisions of Section 11AC of the Central Excise Act, 1944. iv) Penalty should not be imposed under the provisions of Section 11AC of the Central Excise Act, 1944. v) Penalty should not be imposed under Rule 25 of the Central Excise Rules, 2002. The adjudicating authority after considering the submissions made by the appellant re-quantified the demand and confirmed duty demand of Rs. 30,60,884/- along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) ELT 12 (SC) Bharat Commerce and Industries Vs. UOI 1979 (4) ELT (J527) (Del) Commissioner of Customs Vs. Krishna Petrochemicals 2014 (304) ELT 744 (Tri -Ahmd) 2.3 He further submits that another allegation in the show cause notice was that the motor vehicle with chassis was separate entity and the Bulker manufactured by the Appellant was separate entity. Thus, it was proposed that for manufacture of the Bulker, the continued presence of the Chassis was not necessary. The Show Cause Notice proposed to demand duty on the ground that the appellant was engaged in manufacture of bulkers only and not motor vehicles. On such basis, the show cause notice proposed to classify the goods manufactured by the appellant under two different heading namely 8707 and 8716. The adjudicating authority has also classified such goods under heading 8707 of the Tariff. The Commissioner (Appeals) in order has accepted the submission of the appellant that fabricated structure mounted on the chassis or attached to prime mover amount to manufacture‟ but the Commissioner (Appeals) gone on different footing that the dispute is only limited to classification of bulker. He submits that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby creating a fiction of specified activities and processes. The impugned order classifying bulkers under heading 8716 of the Tariff on the basis of HSN is therefore ex-facie illegal. 2.6 He also argued that the Commissioner (Appeals) has failed to consider the fact that the department has accepted classification of the goods manufactured by the Appellant under chapter heading 8704 for the previous period. He also submits the issue of classification of goods manufactured by the appellant is decided in favour of the Appellant by the Commissioner (Appeals) vide Order-In-Appeal No. 117 to 118/2012(Ahd-I)CE/AK/Commr(A)/Ahd dated 07.10.2012 for the subsequent period of February 2011 to January 2012. 03. Shri Vinod Lukose, learned Superintendent (AR) appearing for the Revenue, while reiterating the findings of the adjudicating authority, submits that Appellant were manufacturing Bulkers separately and thereafter attaching it to the chassis with the king pin or mounting it on the chassis; that the chassis was not required for the actual manufacture of chassis and therefore it was not manufacture out of chassis. Owing to the above that benefit of Notification ibid, was not availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Bulker specially designed for transport of fly ash which is mounted on duty paid chassis fitted with the engine received from the customers. We find that the Appellant had classified the said goods under Chapter heading No. 8704 and also claimed the exemption benefits available as per the Notification No. 6/2006-CE dated 01.03.2006. Learned Adjudicating Authority per contra, disputed the claim of appellant and held that Bulker either mounted on chassis or attached to horse is appropriately classifiable under heading 8716 of the First Schedule to the Central Excise Tariff Act, 1985 and appellant are not eligible to claim the benefit of exemption under the above referred notification on merits correct classification of their products under Chapter Heading 8716 instead of 8704 as claimed by appellant. 4.2 In order to appreciate the issue and proper classification of the goods viz. Bulker mounted on duty paid chassis we reproduce the relevant chapter heading No. 8704, 8716 and Chapter Note 5 to Chapter heading 87 as under : Heading No. Description of Goods 1 2 870 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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