TMI Blog2016 (10) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and known in common parlance? Another matter which needs consideration is the Notification No.11/2011 dated 24.03.2011 giving the effect of demand of duty w.e.f. 29.04.2010 on the parts, components and assemblies of goods falling under Tariff Item No.8426 41 00, headings 8417, 8429 and sub heading 8430.10 is clarificatory and applicable prior to 29.04.2010 or mandatory and applicable from 29.04.2010 onward. - Excise Appeal No. 791-793 of 2012 - Order No. 12-14/2016 - Dated:- 1-8-2016 - Mr. Ashok Jindal, Member (Judicial) and Mr. B. Ravichanddran, Member (Technical) Rep By Sh. B.L. Narshimhan, Adv Rep By Sh. G.M. Sharma, AR ORDER PER ASHOK JINDAL : The appellants are in appeal against the impugned order where demand of Central Excise Duty on main appellant has been confirmed along with interest and penalties on all the appellants have been imposed. The brief facts of the case are as under : 1.1 The Appellants are manufacturers of construction equipment viz. Wheeled Tractor Loader Backhoe (WTLB), Hydra Cranes, Forklifts, tractors, etc. chargeable to central excise duty. The WTLB and Hydra Crane are self propelled type. Besides this, they also tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cover even the WTLB and Hydra Crane in terms of definition of this terms, as given in Section 2(28) of the Motor Vehicle Act, 1988 and Section 2 of the Air (Prevention Control of Pollution) Act, 1981 and, therefore, even during the period prior to 29.4.2010, spare parts of WTLB, and Hydra Crane would have to be treated as parts, components and assemblies of automobiles and their packing or repacking for their retail sale would amount to manufacture. On this basis, a show cause notice dated 4.1.2011 was issued to the appellant company for demand of allegedly no-paid duty amounting to ₹ 6,07,44,253/- along with interest thereon and also for imposition of penalty on the Appellant. Company under Section 11 AC and Penalty on Shri Vijay Agarwal, CMD and Shri P.K. Bansal, CFO under Rule 26 of the Central Excise Rule, 2002. 1.2 This show cause notice was adjudicated by the Commissioner, Central Excise, Indore. In course of adjudication proceedings, the appellant citing the Board s circulars No.22/90-CX-4 dated 11-7-1990 and No.1/667/30/CX dated 16.12.2008 pleaded that the components of WTLB and Hydra Crane cannot be treated as automobile parts. In the circular dated 16.12.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Tariff and not on the basis of definition of this term in Motor Vehicle Act, 1988 or Air (Prevention and Pollution) Act 1981, that when components of Hydra crane and WTLB are classifiable under heading 84.31 as construction machinery parts and this classification is not disputed, for the purpose of Section 2(f)(iii) read with 3 rd Schedule of the Central Excise Act, 1944, the same cannot be treated as automobile parts, that the Apex Court in the case of MSCO Pvt. Ltd., reported in 1985 (190) ELT 15 (SC), has held that while constructing a word in a statute or statutory instrument, in absence of any definition of that term in that very statute, it must be given the same meaning which it receives in ordinary parlance or understood in the sense in which the people conversation with the subject matter of the statute understand it and it is hazardous to interpret such word in accordance with its definition in another statute or statutory instrument, more so, where the stature or statutory instrument is not dealing with the cognate subject, that in view of this judgement of the Apex Court, the definition of Automobile in Motor Vehicle Act, 1988 or in Air (Preve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd this Tribunal held that, the duty is payable by the assesse retrospectively i.e. prior to 29.04.2010. Therefore, the appeals filed by the appellants have no merit and accordingly the same are to be dismissed. 4. Heard the parties and considered the submissions. On careful consideration of the submissions made by both sides, we find that the issue arises from the arguments is that : Whether the parts of WTLB and Hydra Cranes are liable for duty prior to 29.04.2010 being covered under automobiles or not? 5. We have seen that as per 3 rd Schedule of Central Excise Act, 1944 the activity of re-packing was deemed to be manufacture entered at Serial No. 100 for parts, components and assemblies of automobiles. The contention of the appellants is that, the items in question are not parts, components and assemblies of automobiles as the same do not qualify as automobiles. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word is used for what is popularly understood as car. Some dictionaries extend it to vehicles carrying small quantity of goods. However, this understating is very different then that given in various Act/Rules for example, Automobile Cess Rules, 1984 defines to mean motor cars, buses, trucks, jeep type vehicle vans, scooters, motorcycle, moped and the like. If one goes by dictionary meaning buses, trucks, vans, scooters, motorcycle, moped are not automobiles. The term automobile is defined in the Air (Prevention and Control of Pollution) Act to mean any vehicle powered either by internal combustion engine or by any method of generating power to drive such vehicle by burning fuel. In our view this definition though in different Act with different purpose will be nearer to the normal understanding of the term as on day. It may be true that concept of automobile started with car, which was thereafter technologically advanced to buses, trucks, scooters, motorcycle, moped and then various special purpose vehicle such as fire tender, ambulance, as also agricultural tractors, construction equipment vehicle, etc. The term automobile, therefore might have started with car to carry few perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... living creature is brought forth it can be said that it is produced. However, dictionary gives more than one meaning of the word produce. Neither the word produce nor the word article has been defined in the Act. When the word is not so defined in the Act it may be permissible to refer to dictionary to find out the meaning of that word as it is understood in the common parlance. But where the dictionary gives divergent or more than one meaning of a word, in that case it is not safe to construe that said word according to the suggested dictionary meaning of that word. In such a situation the word has to be construed in the context of the provisions of the Act and regard must also be had to the legislative history of the provisions of the Act and the scheme of the Act. It is settled principle of interpretation that the meaning of the words, occurring in the provisions of the Act must take their colour from the context in which they are so used. In other words, for arriving at the true meaning of a word, the said word should not be detached from the context. Thus, when the word read in the context conveys a meaning, that meaning would be the appropriate meaning of that word and in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... components w.e.f. 29.04.2010. Without examining the said provisions of law, this Tribunal in paragraph 18.6 of the decision in JCB India Ltd. (supra) has observed as under : 18.6 We also find that this conclusion of ours also get support from the changes made in February/April, 2010. In order to avoid the terminology automobile, (being not defined in Act/Tariff) specific heading of the Central Excise Tariff were introduced in the Notification No.49/2008-C.E. (N.T.). Apparently this was done in haste and Government had to further amend the amendment made in February, 2010 within two months to specifically include headings relating to earthmoving machinery. Not only this, corresponding amendment in Third Schedule was forgotten and next year retrospective amendment had to be brought with effect from 27-2-2010/29-4-2010. Thus a holistic look of these amendments, only supports that parts, components and assemblies of automobiles included that of Loader, Backhoe Loader Road roller and were covered from June, 2006 onwards. The said view is not correct view and not interpreted correctly. Therefore, we are in disagreement with the decision of this Tribunal in the case of JCB ..... X X X X Extracts X X X X X X X X Extracts X X X X
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