TMI Blog2015 (4) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... erspective, there is merit in the argument that these specifications should be tested/examined by the competent authorities before a vehicle can be categorised as a 10 seater or 11 seater, etc. From the documents available on record, it is seen that the various certificates given by the road transport authorities or by ARAI, are merely based on the declarations made by the appellant and not on the basis of any objective data specified in any industry standards or statutory provisions governing motor vehicles and therefore, these certificates do not inspire any confidence as regards their acceptance and not much reliance can be placed on them. From the various statements recorded from the officials of the appellant firm, it prima facie appears that attempts have been made by the appellant to project their vehicle as belonging to a particular type so that their excise duty liability can be minimized. - once classification list has been approved, the excise authorities can take a different view. It is not merely the weight of the passenger but also that of the cargo permitted to be carried that is relevant in determination of the gross vehicular weight. Hence, the argument that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside both orders and remand both the appeals back to the Tribunal and request its President to constitute a larger Bench of three Members to decide the issue whether the vehicles manufactured by the Assessee falls under Entry 87.02.00 or 87.03.00 of the Act. 2. The issue involved in these appeals relates to classification of motor vehicle model Nos. Commander 750 DP (10 Seater), Commander 650 DI (10 Seater) and Commander 750 DP (ST) manufactured by the assessee, M/s Mahindra and Mahindra Ltd., in their Kandivli and Nasik factories during the period from 01/04/1991 to 22/07/1996. The department's contention is that these vehicles merit classification under tariff heading 87.03 of the Central Excise tariff, whereas, the appellant claims classification under tariff heading 87.02. 2.1 Appeal No. E/394/01 filed by the Revenue is against Order-in-Appeal No. ZBN/354/MV/2000 dated 1-11-2000 passed by the Commissioner of Central Excise (Appeals), Mumbai-V. Revenue had filed an appeal before the lower appellate authority against the classification of motor vehicles manufactured by the appellant's unit at Kandivli vide Classification List No. 1/92-93 under Tariff heading 87.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle as an omni-bus in the non-transport category capable of carrying 10 person. The Transport commissioners in Karnataka and Pondicherry have registered the vehicles as a ten-seater without any categorization. Therefore, there is no doubt that the vehicles manufactured by the appellant are capable of carrying 10 persons or more. (3) The adjudicating authority in his order dated 30/03/2005 has sought to classify the vehicle under 8703 mainly on two counts, - (a) length/width of the seats (when taken as the dimensions of carcass/frame) falls short of the requirement for seating 10 persons by a few millimetres, in respect of the vehicles manufactured in Kandivli factory; (b) the pay load of the vehicles fall short of the requirements where weights of both the passenger and the cargo are taken into account. These findings of the adjudicating are clearly wrong. (4) The tariff descriptions of the relevant headings speak of vehicles for the transport of persons only and does not mention anything about the cargo. Therefore, the question of taking weight of cargo would not arise at all. If the weight of the passengers are taken into account, the payload requirements would satisfy the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r certificate has been verified by loading the vehicle with that number of persons, neither the seating layout drawing nor dimensions of the seat were provided and ARAI did not have the statutory authority to verify the seating capacity of the vehicle. (c) The Transport Commissioner has wrongly categorized the vehicle as omnibus under non-transport category as no such category existed prior to 24-11-92. The Transport authority has certified the seating capacity based on the certificate issued by ARAI and the appellant had not submitted any copy of the blue prints having seating details. Therefore, the certificate issued by the said authority is on wrong premises. (d) As per Rule 171 of the Maharashtra Motor Vehicle Rules, 1989, a reasonably comfortable seating space of not less than 381mm was to be provided. Therefore for a two seater, minimum seating space required is 762mm. As per the panchnama drawn in this regard, the dimensions were found to be 744mm in length and 352 mm in width. Thus the two seats placed in the rear-side of the vehicle could accommodate only one person and not designed to carry two persons as claimed by the appellant. Thus the vehicle would carry onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption are as below:- During the period 1-4-91 to 28-2-92 Chapter 87 - Vehicles other than Railway or tramway rolling stock and parts and accessories thereof Notes: 1. ......................... 2. ......................... 3. For the purposes of heading No. 87.02, the expression public-transport type passenger motor vehicle' means vehicles designed for the transport of ten persons or more (including the driver). Heading No. Sub-heading No. Description of goods Rate of duty 87.01 8701.00 Tractors (other than tractors of heading No. 87.09) 15% 87.02 8702.00 Public transport type passenger motor vehicle 25% 87.03 8703.00 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading No. 87.02), including station wagons and racing cars 60% 87.04 8704.00 Motor vehicles for the transport of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for :- (a) rationalization of certain definitions with additions of certain new definitions of new types of vehicles; (b) stricter procedures relating to grant of driving licences and the period of validity thereof; (c) laying down of standards for the components and parts of motor vehicles; (d) standards for anti-pollution control devices; (e) provision for issuing fitness certificates of vehicles also by the authorised testing stations; (f) enabling provision for updating the system of registration marks; (g) liberalised schemes for grant of stage carriage permits on non-nationalised routes, all-India Tourist permits and also national permits for goods carriages; (h) administration of the Solatium Scheme by the General Insurance Corporation; (i) provision for enhanced compensation in cases of no fault liability and in hit and run motor accidents; (j) provision for payment of compensation by the insurer to the extent of actual liability to the victims of motor accidents irrespective of the class of vehicles; (k) maintenance of State registers for driving licences and vehicle registration; (l) constitution of Road Safety Councils. The Act also seeks to provide for more deterrent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules made there-under, prescribe any norms or standards in this regard, the same can be used for the purpose of classification under the Central Excise Act also. The contrary view taken in Order-in-Appeal No. ZBN/354/MV/2000 dated 1-11-2000 passed by the Commissioner of Central Excise (Appeals), Mumbai-V has to be rejected as unsustainable in law. 5.5 The next issue for consideration is whether the classification sought to be made under Tariff Heading 87.03 in Order-in-original No. 50 to 87/Commr (AH)/05 dated 30-3-2005 passed by the commissioner of Central Excise (Adjudication), Mumbai, can be sustained or not. In the case at hand, it is an admitted position that the vehicles manufactured by the appellant has been registered as omnibus . As per section 2(29) of the Motor Vehicles Act, 'omnibus' means any motor vehicle constructed or adapted to carry more than six persons excluding the driver. As per section 2(33), private service vehicle means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for or in connection with his trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or personal effects in the case of a stage carriage and 40 kgs. of luggage or personal effects per occupant in the case of a private service vehicle. 5.6 Further Rule 171 of the MMVR provided for a seating space of not less than 381 mm measured on straight lines along and at right angles with front of each seat and for specified distances between the seats when they are facing each other or facing in the same direction and so on. 5.7 It can thus be seen that there were specifications stipulated in the Statute as to the dimensions of the seating space as also the gross vehicle weight and gross axle weight. These specifications have been provided in the statute not only for the sake of passenger comfort but also for the safety of the passengers travelling in the vehicle. Therefore, when the classification of vehicle is made based on the seating capacity of passengers, the statutorily stipulated specifications and norms have to be complied with. Viewed from this perspective, there is merit in the argument that these specifications should be tested/examined by the competent authorities before a vehicle can be categorised as a 10 seater or 11 seater, etc. 5.8 As regards the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoppels against the law. 5.9 Automobile industry is an industry driven by standards all over the world and these standards get revised/updated at regular intervals. Therefore, it is difficult to comprehend that there are no standards to determine the seating capacity of a motor vehicle. MMVR, 1989, itself has laid down certain norms with regard to seat dimensions, gross vehicle weight and gross axle weight for both private service vehicles and stage carriages taking into account not only the passenger weight but also permissible luggage per passenger. According to technical literature, the gross vehicular weight (GVW) is defined as the maximum operating weight/mass of the vehicle as specified by the manufacturer including the chassis, body, engine, engine fluids, accessories, driver, passengers and cargo but excluding that of any trailers . Thus it is not merely the weight of the passenger but also that of the cargo permitted to be carried that is relevant in determination of the gross vehicular weight. Hence, the argument that only the weight of the persons needs to be taken into account for determining payload and not that of the personal belonging/cargo, is not prima facie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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