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2023 (6) TMI 1320
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.... Appellants. Shri V.S. Nankani, Senior Counsel, Ms. Priyanka Rathi Ms. Ashwini Chandrasekharan, Shri Prasanth Raju and Shri Roshil Nichani, Advocates, Shri P.R.V. Ramanan, Special Counsel and Shri S. Anantha Krishnan, Authorized Representatives for the Respondent ORDER JUSTICE DILIP GUPTA: A Division Bench of the Regional Bench of the Tribunal at Chandigarh, while hearing Excise Appeal No‟s. 791 of 2012, 792 of 2012 and 793 of 2012 filed by M/s. Action Construction Equipment Ltd., P. K. Bansal, and Vijay Agarwal respectively, for the reasons stated in the order dated 01.08.2016, expressed disagreement with the views expressed earlier by another Division Bench of the Regional Bench of the Tribunal at Mumbai on 08.11.2013 in Commissioner of Central Excise, Pune-I vs. JCB India Ltd. 2014 (312) E.L.T. 593 (Tri.-Mum.) (Excise Appeal No. 173 of the 2011), and, therefore, framed the following issues to be decided by a Larger Bench of the Tribunal: "(i) How to define expression "automobiles" when it is not defined in Central Excise Act/Rules or any Notification issued thereunder. Can the expression given in the Acts, namely, Air (Prevention and Control of Polluti....
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....the Tribunal at Chandigarh, it was noticed that the issues involved in the said appeals had been referred to a Larger Bench of the Tribunal by an order dated 01.08.2016 and so these two appeals were also directed to be tagged with the aforesaid three Excise Appeals bearing Nos. 791, 792 and 793 of 2012. 5. Feeling aggrieved by the final order dated 08.11.2013 passed by the Tribunal in Excise Appeal No. 173 of 2011, JCB India filed Civil Appeal No. 5764 of 2014 before the Supreme Court, which Civil Appeal was disposed of on 07.02.2023 with the following observations: "1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 08.11.2013 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (for short "the Mumbai Bench Tribunal") in Appeal No. E/173/11, the assessee - JCB India Limited has preferred the present Appeal. 2. Shri Arvind Datar, learned Senior Advocate, appearing on behalf of the assessee-appellant has pointed out that, subsequently the decision of the Mumbai Bench Tribunal impugned in the present Appeal fell for consideration by the Customs, Excise and Service Tax Appellate Tribunal, Regional....
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....ent of the Tribunal to constitute the larger Bench within a period of 4 weeks from the date of receipt of the present order and thereafter to finally decide and dispose of the issues referred to the larger Bench, referred to hereinabove, at the earliest, preferably, within a period of 6 months from the date of constitution of the larger Bench. The present Appeal stands disposed of in the above terms. No costs." (emphasis supplied) 6. It would be seen from the aforesaid order passed by the Supreme Court that Excise Appeal No. 173 of 2011 (earlier decided by the Mumbai Bench of the Tribunal on 08.11.2013) has been remanded to the Tribunal with a direction that it should be heard together with Excise Appeal No. 791 of 2012, Excise Appeal No. 792 of 2012 and Excise Appeal No. 793 of 2012 pending before the Regional Bench of the Tribunal at Chandigarh and Excise Appeal No. 1161 of 2011 and Excise Appeal No. 2968 of 2011 pending before Mumbai Bench of the Tribunal. 7. A Miscellaneous Application has also been filed by the Tata Hitachi Construction Machinery Co. Ltd. in Excise Appeal No. 85911 of 2013 pending before the Mumbai Bench of the Tribunal with a prayer th....
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....JCB India Limited was subject matter of challenge in Civil Appeal No.5764 of 2014, and the Hon'ble the Supreme Court by order dated 7 February 2023 disposed of the appeal observing that: ***** 8. In view of this position and the fact that the impugned judgment and order is based almost entirely on the decision in the case of JCB India Limited, which is being considered by the larger bench of the Tribunal, we are of the opinion that the impugned judgment and order needs to be quashed and set aside and the appeal filed by the Appellant bearing Appeal No. E/86741 of 2013 stands restored to the file of the Tribunal. Thereafter necessary steps be taken to place the appeal before the larger bench or that the larger bench will consider giving an opportunity to the appellant to address the larger bench on the legal issues." (emphasis supplied) 9. Submissions have been advanced by learned counsel in all the ten appeals on the reference made to the Larger Bench by order dated 01.08.2016. 10. Shri V. Sridharan, learned senior counsel, assisted by Shri Rajesh Ostwal and Shri Saurabh Bhise made submissions on behalf of the appellant in Excise Appeal No‟....
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....ore, the process carried out in the spare parts division would amount to "manufacture‟ in terms of section 2(f)(iii) of the Central Excise Act. This order of the Commissioner was assailed before the Tribunal and reliance was placed by the department on the earlier decision of the Tribunal rendered on 08.11.2013 in JCB India. 13. It would, therefore, be necessary to refer to the said decision of the Tribunal. JCB India was engaged in the manufacture of Hydraulic Excavator Loader (Backhoe Loaders); (ii) Hydraulic Loader (Wheel Loading Shovel/Shovel Loaders); and (iii) Road Rollers (Compactors) and these three shall be referred to as JCB machines. It also has a spare parts division where packing and repacking and sale of spare parts for the aforesaid JCB machines takes place. JCB believed that since the parts were merely packed and sold, the process would not amount to manufacture and, therefore, no excise duty was paid during the period from June 2008 to April 2010. In 2009, the officers of the department visited the spare parts division and seized the goods believing that parts of JCB machines are parts of automobiles. Four show cause notices were thereafter issued to the s....
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.... from one place to another. In case of road rollers, it helps in compacting and setting the road due to vibrating techniques in compaction jobs. 17.2 We also note that these items require registration under Motor Vehicle Act, 1988. We also note that before permitting any motor vehicle on the roads, Motor Vehicle Act requires the vehicles to be examined/tested by specified institutions regarding suitability to ply on road etc. and based upon the appropriate certification, motor vehicles are allowed on the road and registration under Motor Vehicle Act is granted thereafter only. In the present case, appellant had approached the Automotive Research Association of India, Pune who after examination has granted the requisite certificate. A perusal of the application and certificate indicates that the items in question have all ingredients of motor vehicle. 17.3 We also note that the items in question are considered as Automobiles and requires to meet Air pollution norms and under the Air (Prevention and Control of Pollution) Act, 1981. ***** 17.10 To us the inevitable conclusion from the facts as also various judicial pronouncement is that Loader, Back....
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....biles. Therefore, we have to see the definition of "automobiles" under Central Excise Act or any Notification issued thereunder. Admittedly, no definition has been given to the word "Automobiles" in Central Excise Act or any Notification thereunder. The said definition has been dealt by this Tribunal in the case of JCB India Ltd. (supra) wherein this Tribunal observed as under: ***** 6. We have gone through the analysis of the definition of "automobiles‟ by this Tribunal in the above cited case, but we do not agree with the said proposition in the light of the decision of the Hon‟ble Supreme Court in the case of MSCO Pvt. Ltd. vs. Union of India & Ors., 1985 (19) ELT 15 (SC), wherein the Hon‟ble Apex Court has observed as under: ***** Admittedly, the expression "automobiles‟ has not defined in the Central Excise Act. Therefore, it is not permissible to adopt the definition of very same expression appearing in another different enactment. We also take note of the fact that it is settled position when an expression is not defined in the Act to understand the expression in common parlance, dictionary meaning of the expression....
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.... in disagreement with the decision of this Tribunal in the case of JCB India Ltd. (supra)." (emphasis supplied) 17. The Division Bench, therefore, referred the two issues for decision by a Larger Bench of the Tribunal. 18. What, therefore, needs to be decided is whether (i) Wheeled Tractor Loader Backhoe and Hydra Cranes, (ii) Hydraulic Excavator Loader (Backhoe Loaders); (iii) Hydraulic Loader (Wheel Loading Shovel/Shovel Loaders); (iv) Road Rollers (Compactors) are "automobiles‟ because only then can excise duty be levied on packing or repacking of parts, components and assemblies of these goods. 19. It would, therefore, be necessary to examine the relevant statutory provisions, before proceeding with the discussion. 20. Section 2(f) of the Central Excise Act defines "manufacture‟. Section 2(f)(iii) was substituted w.e.f. 01.03.2003 and the relevant portion of section 2 is as follow: "2. In this Act, unless there is anything repugnant in the subject or context,- ********* (f) "manufacture" includes any process,- (i) ***** (ii) ***** (iii) which, in relation to the goods specified in the Third S....
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....n the said notification in the Table:- (i) ***** (ii) ***** (iii) for s.no. 108 and the entries relating thereto, the following shall be inserted, namely:- (1) (2) (3) (4) 108 Any Chapter Parts, components and assemblies of vehicles (including chassis fitted with engines) falling under Chapter 87 excluding vehicles falling under headings 8712, 8713, 8715 and 8716. 30 26. Notification no. 49/2008 was again amended by notification bearing no. 19/2010 dated 29.04.2010 issued under section 4A of the Central Excise Act and the relevant portion is reproduced below: In the said notification, in the Table, after S. No. 108 and the entries relating thereto, the following shall be inserted, namely:- (1) (2) (3) (4) 109 Any Chapter Parts, components and assemblies of goods falling under tariff item 8426 41 00, headings 8427, 8429 and subheading 8430 10 30 27. It needs to be noted that as a corresponding amendment had not been made in the Third Schedule to the Central Excise Act w.e.f. 27.02.2010 and 29.04.2010, it became necessary to amend the Third Schedule to the Central Excise Act retrospectively w.e.....
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....rtment of Revenue in connection with the Finance Bill, 2011 clarified through Circular dated 28.02.2011 bearing no. D.O.F. No. 334/3/2011-TRU that retrospective amendments made in the Third Schedule shall have the force of law only upon the enactment of the Finance Bill, 2011, but they will come into with effect from the date indicated in the Third Schedule. It also clarifies that parts, components and assemblies of vehicles falling under Chapter 87 excluding certain vehicles were notified under section 4A of the Central Excise Act w.e.f. 27.02.2010 and subsequently parts, components and assemblies of certain vehicles under Chapter 84 were also notified w.e.f. 29.04.2010, but since these goods were not simultaneously included in the Third Schedule, they were now being included retrospectively w.e.f. 27.02.2010 and 29.04.2010, respectively. The relevant portion of the Circular dated 28.02.2011 is reproduced below: GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE ***** D.O.F. No. 334/3/2011-TRU New Delhi, dated 28th February, 2011. Unless otherwise stated, all changes in rates of duty take effect from the midnight of 28th February/1st March, 20....
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....cycles; heading 8713 describes the goods as carriages for disabled persons, whether or not motorized or otherwise mechanically propelled; heading 8715 describes the goods as baby carriages and parts thereof; and heading 8716 describes the goods as trailers and semi-trailers; other vehicles, not mechanically propelled; parts thereof. What is important to note is the further amendment to the Third Schedule retrospectively w.e.f. 29.04.2010 by insertion of serial no. 100A after serial no. 100 in which the goods have been described as parts, components and assemblies of goods falling under tariff item 8426 41 00, headings 8427, 8429 and sub-heading 8430 10. These headings are as follows: 8426 Ship‟s derricks; cranes including cable cranes; mobile lifting frames, straddle carriers and works trucks fitted with a crane 8427 Fork-Lift trucks; other works trucks fitted with lifting or handling equipment 8429 Self-propelled bulldozers, angledozers, graders, levellers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers. 8426 41 00 - Other machinery, self-propelled: -- On tyres 32. It is ....
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....e operation. This is what was observed by the Supreme Court in Zile Singh vs. State of Haryana and others Civil Appeal No. 6638 of 2004 decided on 07.10.2004 and the relevant observations are as follows: "13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only - 'nova constitutio futuris formam imponere debet non praeteritis‟ - a new law ought to regulate what is to follow, not the past. (See : Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004 at p.438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil....
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....ctively is not applicable to declaratory Statutes. 38. Learned special counsel appearing for the department, however, placed reliance on the decision of the Supreme Court in Commissioner of Income Tax-I, Ahmedabad vs. Gold Coin Health Food Pvt. Ltd. Civil Appeal No. 5065 of 2008 decided on 18.08.2008 to contend that since the present amendment is clarificatory in nature, it would have retrospective effect even prior to 29.04.2010. 39. What was examined by the Supreme Court in this decision was the amendment made by the Finance Act, 2003 w.e.f. 01.04.2003 in Explanation (4) to section 271 (1)(c)(iii) of the Income Tax Act, 1961. Explanation (4), which defines the expression „the amount of tax sought to be evaded in different circumstances‟, was amended to clarify that in cases where the income in respect of which particulars have been concealed or inaccurate particulars have been furnished has the effect of reducing the loss declared in the return or of converting the loss into income, the tax sought to be evaded shall be the tax that would have been chargeable on the amount of such income as if it were the total income. 40. The Supreme Court analysed the ....
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....mended w.e.f. 27.02.2010 to include parts, components and assemblies of vehicles falling under Chapter 87, excluding certain types of vehicles. This Entry at serial no. 100 was kept intact and the Entry of serial no. 100A was added by the Finance Act, 2011 w.e.f. 29.04.2010 to describe the goods as parts, components and assemblies of goods which would be earth moving equipments. 44. It is difficult to comprehend, more particularly when serial no. 100A has been given a retrospective effect from 29.04.2010, that it would be applicable even prior to 29.04.2010. This date 29.04.2010 is not an artificial date since serial no. 100A has been retrospectively added w.e.f. 29.04.2010 to bring it in conformity with serial no. 109 of the notification no. 19 of 2010 dated 29.04.2010 issued under section 4A of the Central Excise Act relating to valuation of excisable goods with reference to retail sale price. 45. It is, therefore, clear that levy of excise duty was introduced for the first time by serial no. 100A, by providing that packing or repacking of parts, components and assemblies of earth moving equipments would amount to manufacture. It, therefore, imposes a new burden of levy w.e....
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....inery as well......" (emphasis supplied) 50. The aforesaid speech of the Hon‟ble Finance Minister also makes it explicit that components of earth moving machinery like loader and excavators would also be subjected to excise duty in view of the amendment. 51. It is, therefore, more than apparent that prior to 29.04.2010, parts, components and assemblies of earth moving machinery of Chapter 84 of the Central Excise Tariff were not covered by the Third Schedule to the Central Excise Act. Such being the position, the contention advanced by the learned senior counsel for the appellant that prior to 29.04.2010 packing or repacking of parts, component and assemblies of earth moving equipments involved in the present appeals would not amount to manufacture deserves to be accepted. 52. The matter can also be examined from a different perspective by examining whether the earth moving equipments/machines can be called "automobiles‟. 53. It would be useful to first describe the use of the products whose spare parts are involved in the appeals to examine whether the products can be called "automobiles‟. The products involved and the uses are: A.) ....
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.... property on the highway, carrying its own motive power and not operated upon fixed tracks‟. 57. American Heritage Dictionary defines "automobile‟ as a selfpropelled passenger vehicle that usually has four wheels and an internal-combustion engine, used for land transport. It is also called a motorcar. 58. The New Encyclopedia Britannica defines "automobile‟, as usually four-wheeled automotive vehicle designed primarily for passenger transportation and commonly propelled by an internal combustion engine using a volatile fuel. 59. It would be seen that the word "automobile‟, according to the Dictionaries, is properly understood as a car and some dictionaries extend the meaning of word "automobiles‟ to vehicles carrying small quantity of goods. The earth moving construction equipments cannot be termed as automobiles merely because they move on roads or that they have attachment to execute and move earth from one place to another. They are popularly known as "construction earth moving equipments‟ and not "automobiles‟, which infact are conveyances for transportation of passengers, and goods on road, as has also been clarified by the Ce....
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....omobile Cess Rules to conclude that the definition of "automobiles‟ in the Automobiles Cess Rules can be borrowed since "automobiles‟ has not been defined in the notification. The relevant portion of the Circular dated 16.12.2008 is reproduced below: F. No. 167/38/2008-CX 4, dated 16-12-2008 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi 2.1 The first issue is regarding interpretation of term "automobiles‟. The said term has not been defined in the Notification, hence its general meaning needs to be considered. In this regard, reference may be made to the Circular No. 22/90-CX.4, dated 11-7-1990. In this circular at para 2, it has been stated that automobiles are conveyances for transportation of passengers and goods on roads (Chapter 87) and that hydraulic excavators cannot be treated as automobiles. 2.2 Further, as per the Automobile Cess Rules [under the Industries (Development and Regulation) Act, 1951], automobile is defined as follows: "Automobile‟ means motor cars, buses, trucks, jeep type vehicles, vans, scooters, motorcycles, mopeds, and all ot....
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....for power tillers. As the use of the vehicles referred to in the preceding paragraph is also off the road, the tyres and tubes meant for such vehicles or equipments are appropriately classifiable as tyres and tubes of a kind used on vehicles or equipments designed for use off the road under sub-heading Nos. 4011.91 and 4013.91 respectively. For the purpose of classification of tyres and tubes under Chapter 40, what is important is the use of the vehicle, but not the actual use of the tyres and tubes. The fact that such vehicles have to traverse sometimes on the road for reaching the destination for use off the road does not make them vehicles designed for use on the road. 3. Hence, keeping in view the sub-heading descriptions under sub-heading Nos. 4011.91 and 4013.91, if the tyres and tubes are meant for use on vehicles or equipments which in turn are meant for use off the road, such tyres and tubes would merit appropriate classification under sub-heading Nos. 4011.91 and 4013.91 respectively. (emphasis supplied) 64. The Circular dated 22.09.2022 issued by the Central Board of Indirect Taxes and Customs also clarifies that where classification of good....
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.... • Whether the mobile machine comprises of a single engine used for propelling as well as lifting, or if it consists of two separate engines i.e. one each for propelling the vehicle and for the lifting function, does not have a bearing on the classification between 8426 and 8705. • Presence of a separate engine only for the lifting and handling purpose is generally indicative of a larger load lifting capability of the mobile machine. D. Integration of the working machine with the chassis • When the work machine is merely mounted (not integrated mechanically) on the chassis, the goods are classifiable under 8705. • When chassis and working machine are specially designed for each other and form an integral mechanical unit and the chassis cannot be used for any other purpose- the goods are excluded from 8705 and are thus classifiable under 8426. • Outriggers are crucial to the functioning of the mobile machine as they provide the necessary stability in order for the machine to lifts heavy loads. If the outriggers are connected to and are a part of the sub structure i.e. the chassis and are controlled from the engin....
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....ransport of ten or more persons, including the driver; 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; 8704 motor vehicles for the transport of goods; and 8705 Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, breakdown lorries, crane lorries, fire fighting vehicles, concrete-mixers lorries, spraying lorries, mobile workshops, mobile radiological units). 70. In this connection it would also be useful to refer to the HSN Explanatory Notes to Heading 84.29. This covers excavators and road rollers and number of earth digging machines. This substantiates the fact that even according to HSN, while earth moving equipments such as the machines in the present case are covered under Chapter 84, automobiles are covered under Chapter 87. Thus, there is a difference between "automobiles‟ and "earth moving machinery‟, which difference has been captured in the Tariff Act. 71. The description of goods given in Excise Tariff Item 7326 19 10 is "automobiles and ear....
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....n used in the Notification along with railway carriages and the aircrafts, any restricted meaning given to it does not appear to be consistent with the scheme discerned from the reading of the notifications as a whole." (emphasis supplied) 73. This decision of the Tribunal will not help the department in the facts and circumstances of the present case since the word "automobile‟ has not been used in the notifications in the company of words like "railway carriages and aircrafts‟. 74. Learned special counsel for the department also placed reliance upon the judgments of the Supreme Court in Central Coal Fields Ltd. vs. State of Orissa and Ors. AIR 1992 SC 1371 and Bose Abraham vs. State of Kerala & Anr. (2001) 3 SCC 157 as also on the judgment of the Madras High Court in Ashok Leyland Ltd. vs. Union of India 1991 (52) E.L.T. 32 (Mad.) . 75. In the two judgments of the Supreme Court in Central Coal Fields and Bose Abraham, the issue was whether excavators, road rollers, dumpers and rockers qualified as "motor vehicles‟ under the Motor Vehicles Act, 1988 and would be chargeable to tax under the Bihar & Orissa Motor Taxation Act, 1930 and the Kerala T....
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.... construing a word in an Act, caution should be applied while adopting a meaning ascribed to that word in other Statutes. Each Statute has a different object and, therefore, the definition of a word described in one Statute cannot mechanically be applied to another Statute. In this connection, reference can be made to the decision of the Supreme Court in Commissioner of Sales Tax, Madhya Pradesh, Indore vs. Jaswant Singh Charan Singh AIR 1967 SC 1454 and the relevant portion of the judgment is reproduced below: "7. Counsel then relied upon section 5 of the Colliery Control Order, 1945, in order to show that the Legislature there had dealt with coal in its strict and technical meaning. He also relied upon certain other statutory provisions with a view to show that the Legislature has all along been using the word 'coal' as a mineral product only. The Colliery Control Order deals with collieries and obviously, therefore, the term 'coal' there is used as a mineral product. It is a well-settled principle that in construing a word in an Act caution is necessary in adopting a meaning ascribed to that word in other statutes. As Lord Loreburn stated in Macbeth v. C....
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....t be applied mechanically to another statute. As aforesaid, the object of the Excise Act is to raise revenue for which various goods are differently classified in the Act. The conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute for non-levy of excise duty, thereby causing a loss of revenue. [See Medley Pharmaceuticals Ltd. vs. CCE and Customs, and CCE vs. Shree Baidyanath Ayurved Bhavan Ltd.]. The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding of "ice-cream" and thus, may require different standards for a good to be marketed as "icecream". These provisions are for ensuring quality control and have nothing to do with the class of goods which are subject to excise duty under a particular tariff entry under the Tariff Act. These provisions are not a standard for interpreting goods mentioned in the Tariff Act, the purpose and object of which is completely different." (emphasis supplied) 84. The Motor Vehicles Act 1988 uses the term "motor vehicle‟ and does not refer to "automobile‟. It....
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.... (i) As the expression "automobile‟ has not been defined in the Central Excise Act, it would not be permissible to adopt the definition of the word "automobile‟ in other enactments and, therefore, it would not be possible to agree with the views expressed by the Mumbai Bench of the Tribunal ; (ii) Various dictionaries have defined the expression "automobile‟ to mean a car or goods carrier; and (iii) The amendment made in the Third Schedule w.e.f. 29.04.2010 and the clarification given by the Ministry of Finance on 28.02.2011 make it clear that duty would be payable on parts and components of earth moving machines only w.e.f. 29.04.2010. 89. What follows from the aforesaid discussion is that the earth moving machines involved in the present appeals are not "automobiles‟. It would not be appropriate to borrow the meaning of the word "automobile‟ or „motor vehicle‟ under the Motor Vehicles Act, 1988 or the Air (Prevention and Control of Pollution) Act, 1981 merely because the word "automobile‟ has not been defined in the Central Excise Act, Central Excise Tariff Act or the Notifications issued by the Central Governme....