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2015 (4) TMI 563
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....hat the vehicles manufactured by the assessee falls under Entry 87.02.00 of the Central Excise Tariff Act, 1985 (hereinafter referred to as "the Act"). However, in Appeal No. E/2053/05, decided on 7 th December 2009, the Tribunal has taken the view that the vehicles manufactured by the assessee falls under Entry 87.03.00 of the Act. Since two Benches of the same strength of Members have taken two conflicting views, we are of the opinion, that judicial discipline requires that instead of disagreeing with the view taken by the first Bench, the appropriate course for the second Bench would have been to refer the matter to a larger Bench. This is the basic requirement of judicial 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 th....
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....ed motor vehicles for transport of 10 or more persons including the driver). Since the vehicles manufactured by the appellant were designed to transport 10 or more persons including the driver, the question of their classification under tariff heading No. 8703 does not arise at all. (2) As envisaged under Rule 126 Motor Vehicles Rules, 1989, the appellants had offered a prototype of the vehicles for certification to Automotive Research Association of India (ARAI) which has certified the vehicle as a 10 seater. The vehicles were also examined by various State Transport Commissioners for certification for registration in their states and these authorities, especially those in Gujarat 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, -....
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....onafide belief that the vehicle is correctly classifiable under tariff heading 87.02, no penalty is imposable. 4. The learned Special Consultant appearing for the Revenue, on the other hand, would strongly support the findings of the adjudicating authority. His submissions can be summarized as under:- (a) The vehicles under dispute are only an extended version of Model MM540 of the appellant which was a jeep with carrying capacity of 6 persons. Though the appellant has claimed that the vehicles were manufactured from the chassis frame of MM540 ambulance, no evidence has been submitted by the assessee in this regard. (b) Though the Dy. Director ARAI has stated that the carrying 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 cap....
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....the minimum seating requirement and yet they mis-declared the seating capacity to avail undue duty benefit and this is evident from the statements of Section Engineer Sri. Sanjay Joshi dated 31-10-1992 and the note dated 8-1-1991 of Sri. O.B. Fernandez, G.M. Operations. Thus suppression on the part of the appellant is clearly established justifying invocation of extended period of time and imposition of penalties. 5. We have carefully considered the submissions made by both the sides. Our findings and conclusions are discussed in the ensuring paragraphs. 5.1 It would be useful at this juncture to refer to the description of the competing entries in the Central Excise Tariff. The relevant 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-headi....
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....placed by The Motor Vehicles Act, 1988 to provide for :- (a) rationalization of certain definitions with additions of certain new definitions of new types of vehicles; (b) stricter procedures relating to grant of driving licences and the period of validity thereof; (c) laying down of standards for the components and parts of motor vehicles; (d) standards for anti-pollution control devices; (e) provision for issuing fitness certificates of vehicles also by the authorised testing stations; (f) enabling provision for updating the system of registration marks; (g) liberalised schemes for grant of stage carriage permits on non-nationalised routes, all-India Tourist permits and also national permits for goods carriages; (h) administration of the Solatium Scheme by the General Insurance Corporation; (i) provision for enhanced compensation 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. ....
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....r more persons. If the Motor Vehicle Act and the Rules made there-under, prescribe any norms or standards in this regard, the same can be used for the purpose of classification under the Central Excise Act also. The contrary view taken in Order-in-Appeal No. ZBN/354/MV/2000 dated 1-11-2000 passed by the Commissioner of Central Excise (Appeals), Mumbai-V has to be rejected as unsustainable in law. 5.5 The next issue for consideration is whether the classification sought to be made under Tariff Heading 87.03 in Order-in-original No. 50 to 87/Commr (AH)/05 dated 30-3-2005 passed by the commissioner of Central Excise (Adjudication), Mumbai, can be sustained or not. In the case at hand, it is an admitted position that the vehicles manufactured by the appellant has been registered as "omnibus". 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 car....
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....e of baggage of not more than 14 kgs. of luggage or personal effects in the case of a stage carriage and 40 kgs. of luggage or personal effects per occupant in the case of a private service vehicle. 5.6 Further Rule 171 of the MMVR provided for a seating space of not less than 381 mm measured on straight lines along and at right angles with front of each seat and for specified distances between the seats when they are facing each other or facing in the same direction and so on. 5.7 It can thus be seen that there were specifications stipulated in the Statute as to the dimensions of the seating space as also the gross vehicle weight and gross axle weight. These specifications have been provided in the statute not only for the sake of passenger comfort but also for 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 se....
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....pproved classification list as there can be no estoppels against the law. 5.9 Automobile industry is an industry driven by standards all over the world and these standards get revised/updated at regular intervals. Therefore, it is difficult to comprehend that there are no standards to determine the seating capacity of a motor vehicle. MMVR, 1989, itself has laid down certain norms with regard to seat dimensions, gross vehicle weight and gross axle weight for both private service vehicles and stage carriages taking into account not only the passenger weight but also permissible luggage per passenger. According to technical literature, the gross vehicular weight (GVW) is defined as "the maximum operating weight/mass of the vehicle as specified by the manufacturer 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 t....