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TMI Blog1995 (4) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned Central Excise Officers were informed about the manufacture of dumpers at Nagpur by the appellans M/s. Susumo Engineering, Nagpur. On investigation, it was found that 3 dumpers were manufactured and cleared by the appellants without taking a Central Excise licence, without following the Central Excise Procedure and without payment of duty. Show cause notice was issued demanding the duty on 3 dumpers and also proposed for penalty for contravening the provisions of Central Excise Rules. Reply was duly filed denying the liability on the ground that item manufactured was forklift and not dumper and there was no contravention of provisions of Excise Law since items were delivered through Delivery Challans and declaration was also filed. The Collector who adjudicated the proceedings after considereing the reply, submissions and evidence placed on record negatived the contentions of the appellants in arriving at the conclusion that the product Susumo Dumper Mahabali 1300 is a light dumper and is correctly classifiable under sub-heading 8704.00. 3. Shri M.H. Patil, learned Advocate, appearing for the appellants submitted that appellant's unit is a proprietary concern and appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istance on the highway and off the highway. He said that Heading 84.27 covers works truck fitted with handling or lifting equipment and H.S.N. clarifies that lifting device fitted with either of fork or bucket and, accordingly it may be classified under 84.27. It is classifiable under Heading 84.27 since lifting device is attached with bucket and if it is held that bucket does not perform the handling function, then the item would fall under Heading 87.09 but not under Heading 87.04. He said that item cannot be used as motor vehicle for transport of goods on highway and even off the highway as item is being used for handling material with bucket to carry material inside factory, warehouse etc. The item is not dumper but works truck having a speed level of minimum 4 K.M. ph. and maximum of 13.5 K.M. ph. He said that Dumper is a self-propelled off the highway equipment having an open cargo body, designed to haul and dump material and loading is done by means of external of the dumper. The dumpers being referred to under Heading 87.04 are the items which carry the material behind the back of driver and dump material rear side whereas item in question is just a works truck fitted with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the construction and further this is substantiated as the product is described as dumper in the catalogue which is the best trade evidence in determining the classification. He said that catalogue is not an advertisement but a technical literature in respect of the product manufactured by them and in the catalogue it is mentioned that "Susumo Dumper Mahabali 1300 is gravity type 1.3 tons dumper can work on rough road, on construction site and mine. Use it at foundries, Sugar Factory, Mineral Factory, General Engineeriung Industries, etc. Its bucket when unlocked tips effortlessly by gravity. It moves where truck cannot move. The pamphlet also shows that it is ruggedly built to tackle bulk material handling task at construction site like tunnels, canals, bridges and buildings, etc." Referring to the Explanatory Notes in H.S.N. under three headings, to classify under Heading 87.09 it should not be fitted with lifting or handling equipment and must be used in specified areas therein but in the instant case item in question is fitted with shape of bucket and can be used at construction site and mines and, accordingly, Heading 87.09 is ruled out. Similarly to classify under Heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as Motor Vehicle under Heading 87.04 as per Department or works trucks under 87.09 or alternatively as other works trucks fitted with lifting or handling equipment under 84.27 as claimed by the party. Dumpers , as such,, are not mentioned in any of the items either under Chapter 84 or under Chapter 87 in the Central Excise Tariff. But we find item Dumpers in H.S.N. under Heading 87.04 Motor Vehicles for the transport of goods and 8704.10 specified that Dumpers designed for off-highway use and further the Heading also covers (1) Dumpers, sturdily built vehicles with a tipping or bottom opening body, designed for the transport of excavated or other materials. These vehicles, which may have a rigid or articulated chassis, are generally fitted with off-the-road wheels and can work over soft ground. Both heavy and light dumpers are included in this group; the latter are sometimes characterised by a two way seat, two seats facing in opposite directions or by two steering wheels, to enable the vehicles to be steered with the driver facing the body for unloading. It was argued on behalf of the appellants that item cannot be identified with the name of the product and mere calling it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes transport into two categories, transport under 87.04 and short distance transport under 87.09 and in view of the use of the item in limited places like factory and warehouses, it is covered under Heading 87.09 and in view of handling function of the bucket it can be classified under Heading 84.27 but not under 87.04. Shri Patil submitted that the appellants have manufactured either forklift or works trucks fitted with lifting device/handling equipment/bucket as per orders of the customers and photographs were placed before the Adjudicating Authority explaining different models or modified form of Forklifts or works trucks attached with buckets were manufactured by the appellants but instead of appreciating the factual position it was misinterpreted and Collector gave a finding that he was misled by the appellant. We find that Collector has observed in his order that appellant has produced forklift subsequent to the issue of show cause notice and produced a photograph to confuse the Adjudicating Authority or even the Appellate Authority in future by showing the photograph of the product which is not under dispute. He should have given a clear finding how the impugned product was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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