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2017 (6) TMI 855 - AT - Central ExciseClassification of goods - body building for motor vehicles on chassis falling under CETH 8706 - N/N. 6/2006-CE and 12/2012-CE - Revenue entertained a view that the appellants are engaged only in building or fabricating bodies on the chassis and they do not manufacture motor vehicle but only bodies of motor vehicle - whether such goods cleared by the appellant are classifiable under Heading 8704 as “motor vehicles for transport of goods” or under Heading 8707 as “bodies (including caps) for the motor vehicle of Headings 8701 to 8705”? - Held that: - the appellants were building bodies on the chassis classified under Heading 8706. Such activity is deemed to be manufacture of a motor vehicle in terms of the above chapter note. A plain reading of the chapter note alongwith the relevant tariff headings makes it clear that the product cleared by the appellant after body building activity is a “manufactured” motor vehicle. Considering the nature of motor vehicle, which is for transport of goods, the same has to be classified under Heading 8704 - the claim of refund under Rule 5 of CCR, 2004 in Automobile Corporation of Goa Ltd. vs. CCE, Goa [2011 (9) TMI 399 - CESTAT, MUMBAI] held that the independent body builders are manufacturers of body on their own account and, hence, are to be considered as manufacturers of motor vehicle. CENVAT credit - availment of credit on inputs used by the appellants, appellant have reversed credit attributable to inputs used in manufacture of exempted goods - Held that: - it is a settled position that reversal of credit amounts to non-availment - reliance placed in the case of Commissioner of Central Excise, Mumbai- I Versus M/s Bombay Dyeing & Mfg. Co. Ltd [2007 (8) TMI 2 - Supreme Court], where it was held that Reversal of Cenvat Credit would amount to non taking credit. Appeal allowed - decided in favor of appellant.
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