AI Drafter 
TaxTMI 
TaxTMI 
2019 (11) TMI 421
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....5) TMI 494 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA. Brief Facts of the Case A. Tata Motors Limited (hereinafter referred to as "The Appellant") is in the business of manufacturing and selling of vehicles, chassis for vehicles and parts thereof. The Appellant manufactures commercial as well as passenger vehicles. B. The Appellant has launched its passenger vehicle, (Tata Harrier', which has following technical specifications: Particulars Details Seating capacity 5 persons including driver Engine capacity 1956 cc Fuel Diesel Market segment Utility Vehicle (UV) Length 4598 mm Grcund clearance (Unladen) 205 mm Ground clearance (Laden) 160 mm (subsequently amended to 176 mm) C. The Central Government has vide Notification No. 1/2017-Compensation Cess (Rate) dated 28.06.2017, as amended from time to time, (hereinafter referred to as "Cess Rate Notification") notified the rate of Compensation Cess that would be levied on the intra-State supplies and inter-State supplies of such goods. D. The rate of compensation cess, applicable on supply of goods, is determined based on the description of goods specified in the correspond....
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....irst Schedule") broadly covers vehicles other than railway or tramway rolling-stock, and parts and accessories thereof. I. As the Tata Harrier is vehicle having seating capacity of upto 5 persons (including driver) most relevant Heading is 8703 which covers motor cars and other motor vehicles principally designed for the transport of less than 10 persons (including driver), including station wagons and racing cars. J. The relevant extract of the Chapter Sub-heading 8703 32 is reproduced hereunder Tariff Item Description of goods (1) (2) 8703 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars 8703 32 -- Of a cylinder capacity exceeding 1,500 cc but not exceeding 2,500 cc : 8703 32 10 --- Vehicles principally designed for the transport of more than seven persons, including the driver --- Other : 8703 32 91 ---- Motor cars 8703 32 92 ---- Specialized transport vehicles such as ambulances, prison vans and the like 8703 32 99 ---- Other K. Since, the Tata Harrier has engine capacity of 1956 cc and seating ca....
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.... under Compensation Cess Act; b. subsequent to filing Application for Advance Ruling, ARAI issued Certificate for Compliance under Central Motor Vehicle Rules, by Tata Harrier vehicle, specifying Minimum Ground Clearance as 176 mm (laden) in accordance with IS-9435; in the absence of said ARAI Certificate at the time of filing Application for Advance Ruling, the Appellant had mentioned Ground Clearance in laden condition as 160 mm in table to Question No. (1.1); under the circumstances, the Appellant requested to treat the said Application amended to this effect more specifically question nos. (1.1), (1.4) and (1.5) framed in the Application; c. notwithstanding the above factual amendment in subject Application, considering the fact that in near future the Appellant may launch vehicles with ground clearance below 170 mm in laden condition, the Appellant requested the Advance Ruling Authorities for deciding the questions raised in Application. O. In the said letter, in view of amendment in ground clearance, the Appellant also framed Additional Question as below: Q. No. (1.4A) Vehicle whose ground clearance in unladen condition is more than 170mm but bel....
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.... be applicable to Tata Harrier vehicle? Answer to question No. 1.5: GST Compensation Cess @ 22% under Sr. No. 52B of Cess Rate Notification would be applicable to Tata Harrier. f. Question No. 1.6: Vehicle whose ground clearance in unladen condition is more than 170mm but below 170mm in laden condition, whether will get covered under Sr. No. 52B of Cess Rate Notification? Answer to question No. 1.6: To get covered under Sr. No. 52B of Cess Rate Notification No., the ground clearance should be 170 mm or above in unladen condition. Q. Being aggrieved by the answers in Impugned Order to question Nos. 1.3 and 1.6 of the Application for Advance Ruling, the Appellant is filing the present Appeal before your honour to the extent they are answered against the Appellant. R. However, the Appellant has filed this appeal beyond the period of 30 days from the date of the communication of the Advance Ruling Order as envisaged under Section 100(2) of the CGST Act, 2017, which provides that every appeal shall be filed within a period of 30 days from the date on which the ruling sought to be appealed against is communicated to the concerned officer, the jurisdiction....
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....hether to compute the ground clearance in laden condition or unladen condition. In the absence of the same, the Appellant submits that it has to be computed in laden condition as the vehicle would be used in a laden condition and not in an unladen condition. 4. The Appellant further submit that as per the regulations of Motor Vehicle Act, 1988, a manufacturer of motor vehicle is required to obtain certificate from 'The Automotive Research Association of India ('ARAI')' to the effect that the vehicle manufactured by the manufacturer is complying with the Central Motor Vehicles Rules. The said certificate is issued based on the standards laid down in this regard. ARAI is a research institution of the automotive industry with the Ministry of Heavy Industries & Public Enterprises, Government of India. The ARAI has been certifying the specification/ dimensions of vehicles including ground clearance in accordance with IS-9435. 5. IS-9435 is Indian Standard for terms and definitions relating to dimensions of road vehicles issued by Bureau of Indian Standards. At Clause 5.8 of IS-9435 enclosed as Annexure - 11, following is mentioned: "The distance between the ground and the....
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....2B of Cess Rate Notification, the Advance Ruling Authority has answered that for the purpose of said Sr. No. the ground clearance should be 170 mm or above in unladen condition. 9.2 The Appellant referring to submissions made above, submits that this finding is factually not correct. The ARAI has been computing ground clearance in laden condition under IS-9435. Hence, this finding also needs to be set aside. 9.3 The Appellant also submits that there are specified norms for computation of ground clearance. As per these norms, the dimension is to be scaled with the vehicle loaded to its maximum capacity or the approved gross vehicle weight ('GVW'). In other words, the ground clearance is measured in laden condition and the weight considered in determining the same is the maximum capacity or the approved gross vehicle weight. 9.4 Given this, the finding that the weight of passengers will not be constant and will change, is not correct to determine the ground clearance of the vehicle. Accordingly, the Appellant submits that the impugned Order should be set aside to the extent it is held that the ground clearance is to be considered in unladen condition. 10. Since, the GST l....
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....ification provides for the rate of compensation cess applicable on the goods including motor vehicle. The rate of compensation cess is different for vehicles having different capacity and features. Further, the Rate Notification does not lay down the criteria for determination of capacity and the features basis which the vehicles should be classified. 10.3 Motor Vehicle Act, 1988 and the rules made thereunder are applicable to the motor vehicles. Given this, 'motor vehicle' is an object which is common for Rate Notification and the Motor Vehicle Act, 1988. 10.4 By applying the ratio laid down in case of Mahindra & Mahindra Ltd. [2015 (324) E.L.T. 707 (Tri. - LB)] = 2015 (4) TMI 563 - CESTAT MUMBAI, the Appellant submits that for determination of ground clearance, reference should be made to Motor Vehicles Act, 1988 and the rules made thereunder. 10.5 It is relevant to note that as per IS 9435:2004 - 'TERMS AND DEFINITIONS RELATING TO DIMENSIONS OF ROAD VEHICLES OTHER THAN 2 AND 3 WHEELERS' ground clearance for measurements should be carried out in laden condition. 10.6 The fact that the ground clearance is in accordance with the criteria laid down by Indian Standards IS....
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.... said delay of 20 days was not deliberate on their part. Hence, we allowed the appellant to present their appeal within a further period of 30 days in accordance of the proviso to sub section 2 of section 100 of the CGST Act 2017. Subsequent to the admission of the appeal, the representative of the Appellant reiterated their written submissions, which they have filed before us. The representative of the Respondent argued on the same line, as they have done earlier before the Advance Ruling Authority, countering the submissions made by the Appellant. Discussion and Findings 13. Heard both the parties, and have also gone through the facts of the case and all the written and oral submissions made by the Appellant as well as the Jurisdictional officer/Respondent. The Appellant, having been aggrieved with the ruling in respect of Question 1.3 and Question 1.6, have filed the present appeal against the impugned Advance Ruling passed in respect of the aforementioned questions 1.3 and 1.6 only. Hence, first we would like to go through the impugned ruling pronounced by the Advance Ruling Authority in respect of the above-mentioned questions, wherein they held as under: Questi....
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....on 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder. ........................................ 18. Thus, the aforesaid provision mandates the manufacturer of motor vehicle to obtain certificate from the competent authority, which in the present case is 'The Automotive Research Association of India ('ARAI')' to the effect that the vehicle manufactured by the manufacturer is complying with the Central Motor Vehicles Rules. The said certificate issued by ARAI is based upon the standards laid down in this regard. ARAI is a research institution of the automotive industry with the Ministry of Heavy Industries & Public Enterprises, Government of India. The ARAI has been certifying the specification/ dimensions of vehicles including ground clearance in accordance with IS-9435. 19. Further, it is seen that IS-9435 is Indian Standard for terms and defi....
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....ion Cess (Rate), dated 28.06.2017. 23. As regards the observation made by the Advance Ruling Authority, it is opined that the rulings made by the Advance Ruling Authority is arbitrary and ungrounded, and the same is based on the flimsy notion in so much as they inferred that the weights of the passengers occupying the motor vehicles is not standardized, as the same will vary with persons occupying the motor vehicle, and thereby causing fluctuation in the ground clearance of the motor vehicles. In this regard, we would like to refer to the submissions made by the Appellant, wherein they relied upon the CESTAT Rulings in the case of TELCO Ltd. [2002 (143) E.L.T. 548 (Tri.-Mumbai)] = 2002 (2) TMI 717 - CEGAT, MUMBAI which has been upheld by Hon'ble Supreme Court and reported in [2003 (152) E.L.T. A259 (S.C.)] = 2002 (9) TMI 876 - SC ORDER], wherein to compute payload of the vehicle the standard weight per passenger was considered as 68 kg in line with the yard stich proposed by motor vehicle law. In view of the above cited ruling of the CESTAT Mumbai, which was subsequently upheld by the Supreme Court, it is observed in the instant case that the Advance Ruling Authority has not fol....