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2023 (11) TMI 305 - CESTAT CHENNAIExemption from payment of National Calamity Contingent Duty (NCCD) as per notification 67/95-CE dt. 16.03.1995 - Manufacture of Dumper trucks and Dumper trucks without body (Chassis with Cabin) - Captive consumption/intermediate product - Classification of the impugned chassis. The Dumper Truck was manufactured by fixing the load body on the chassis with cabin - exemption from NCCD denied on the ground that the chassis is thus captively consumed in the production of final product, viz., Dumper Truck. Whether the appellant is liable to pay NCCD on Dumper chassis as an intermediate product? HELD THAT:- The Dumper without the body cannot be treated as a chassis of a dumper, for the reason that it appears to have all the essential features of a dumper, except for that it is not fitted with the body. As per Note (2) of the Interpretative Rules to the Central Excise Tariff Act, 1985 which has been already noticed in para 6.1 of this order, when the incomplete or unfinished article has the essential character of the complete or finished article, such unfinished article merits classification under the heading of the complete or finished article. The Ld. Counsel for the appellant has emphasized that there is no practice in the market to sell a chassis of a Dumper. The reason in the impugned order to hold that an intermediate marketable product emerges is not based on the process/ stages of manufacture. The reason is that the appellant while making some exports had described the product as “chassis with cabin assembly” in the export documents. The exigibility to duty of a product cannot merely be based on how the assessee described the product in a document. In case of dispute, the department has to clearly state in the SHOW CAUSE NOTICE the nature, classification and dutiability of the product - The Tribunal in the case of COMMISSIONER OF C. EX., MYSORE VERSUS BHARAT EARTH MOVERS LTD. [2009 (10) TMI 748 - CESTAT BANGALORE] has categorically held that the demand of NCCD cannot sustain as there is no intermediate, identifiable and marketable product viz. Dumper chassis emerging in the process of manufacture of dumpers. The issue as to whether NCCD is payable on dumper chassis was also held in favour of assessee by the Tribunal. In the case of BAJAJ AUTO LIMITED VERSUS UNION OF INDIA & OTHERS [2019 (3) TMI 1427 - SUPREME COURT] the Hon’ble Apex Court was considering the issue as to whether the area-based exemption notification no.50/2003-CE dated 10.06.2003 issued under Section 5A of CE Act, 1944, would be applicable to NCCD also. The Hon’ble Apex Court held the issue in favour of assessee and that the appellant would not be liable to pay the NCCD. Thus, the issue as to whether the exemption under notification 67/95 is available to NCCD is to be answered in the affirmative and in favour of the assessee. The demand of NCCD therefore cannot sustain and requires to be set aside. Classification of the impugned chassis, the alleged intermediate product - HELD THAT:- As the issue is decided on merits as to whether the exemption under notification 67/95 is available to NCCD in favour of assessee, it is not necessary to delve into these arguments on classification. It is clarified that no decision rendered on the classification of the impugned goods the findings are confined as to whether the demand of NCCD is sustainable or not. The impugned order is set aside - The appeal is allowed.
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