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TMI Blog2024 (12) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... is a serious error in the entire issuance of show cause notice as well as passing of adjudication order in as much as the show cause notice ignoring the chapter Note of chapter 87, the vehicle was proposed to be classified under chapter 8707, on top of that the adjudicating authority has travelled beyond the scope of show cause notice and classified the motor vehicle not only one particular chapter heading but under chapter heading 8703 or 8704. Therefore, firstly the adjudication order travels beyond the scope of show cause notice. Secondly, the adjudicating authority is also not confirmed that whether the motor vehicle will fall under chapter 8703 or 8704. Therefore, on this basis itself, the entire adjudication proceeding is vitiated. Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture. Accordingly, the impugned orders are not sustainable. Hence the same are set aside - appeal allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. C L MAHAR Shri Jagrat Shah, Advocate Shri Bisan R Shah Shri Pooja Shah, Chartered Accountant for the Appellant Shri Rajesh Nathan, Assistant Commissioner (AR) for the Respondent ORDER RAMESH NAIR The issue involved in the both the appeals is common, therefore, both the appeals are taken together for disposal. 1 The brief facts of the case in the present appeals is that the appellant are engaged in the manufacture of body structure of Buses (i.e. fabricating and mounting on the chassis). The appellants are neither registered with the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice that the chassis received by assesse from their clients, falls under the chapter heading 8706 of the Central Excise Tariff Act, 1985 on the bodies so manufactured apparently falls under Central Excise Tarif Heading 87079000 i.e. bodies (including Cabs) for the motor vehicles of heading 8702, 8705 and excise duty is leviable on the said goods. On this basis the show cause notice proposed the classification of motor vehicles manufactured by the appellant under heading 87079000 and the same is not eligible for exemption Notification No. 12/2012-CE under entry No. 334. Consequently, the notice proposed the demand of excise duty along with interest and imposition of penalties. The adjudicating authority while adjudicating the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3 Without prejudice to the above, he further submits that in the present case the penalty was also imposed on the proprietor of the proprietorship concern. It is a settled law that in case of proprietorship concern, a separate penalty on proprietor cannot be imposed. He placed reliance on the following judgments:- Commissioner of C. Ex., Nagpur vs. Ballarpur Industries Ltd - 2007 (215) ELT 489 (SC) Caprihans India Ltd vs. CCE - 2015 (325) ELT 632 (SC) Faze Three Limited. v C.C.E S.T. -Silvasa 2024 (1) TMI 635 Commissioner of Customs, Mumbai vs. Toyo Engineering India Ltd - 2006 (201) ELT 513 (SC) Swapne Nagari Holiday Resort vs. Commissioner of C.Ex., Raigad - 2019 (21) GSTL 559 (Tri.- Mumbai) Senor Metals Pvt Limited vs. Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 We find that the chapter 8703 is in respect of the passenger vehicle having sitting capacity of not exceeding 10 persons and chapter heading 8704 is for the motor vehicle for transport of goods. In the present case the motor vehicle manufactured by the appellant is having sitting capacity of 41 passenger. Therefore, it is neither classifiable under 8703 nor 8704. On this basis itself demand is not sustainable. 4.2 Without prejudice to the above, we proceed to analyse the correct position of classification as well as applicability of the notification. We find that admittedly the appellants have fabricated and mounted the bus body on the chassis supplied by their client who is not a chassis manufacturer. The said activity is amount to manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed gases), falling under heading 8704; and (iii) three wheeled motor vehicles Nil 27 4.4 The above notification exempts motor vehicles of chapter 87 particularly designed for transportation of more than 6 persons. In the present case the bus manufactured by the appellant is a motor vehicle for transport of more than 6 persons. Therefore, the same is covered by the exemption entry Sr. No. 276. The said Notification contains the condition No. 27 which reads as under:- it manufactured out of chassis falling under heading 8706 on which duty of Excise has been paid and no credit of duty have paid on such chassis and other inputs used in the manufacture of such vehicle has been taken under Rule 3 or Rule 30 of the Cenvat Credit Rules , 2004 4.5 A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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