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2018 (3) TMI 256

aimed to be meant for off-road use and hence classifiable under 8704 2390. However, Revenue of the view that such vehicles are meant for off- road use and hence are to be described as “dumpers” for off-road use which are classifiable under 870410. - Held that: - The Central Excise Tariff is based on the HSN Harmonised System Nomenclature. The HSN explanatory notes can serve as a useful guide in deciding the classification of the goods under the First Schedule to the Central Excise Tariff Act, 1985. - The features highlighted by the appellant include limited speed as well as special earthmoving tyres. When we look at the specifications of the trucks manufactured by both the appellants, we note that such trucks are capable of maximum speed in the range of 70 to 85 km per hr. The type of wheels/ tyres which are used in the appellant’s vehicles are also of the type used on highways and not off-road tyres - such vehicles manufactured by the appellant are meant to carry loads and capable of off-loading but the same are not machines exclusively meant for off-road use. - The motor vehicles manufactured by the appellants do not fall in the category of dumpers designed for off-hi .....

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es for transport of goods and chassis of such motor vehicle fall under Central Excise Tariff Heading 8704 and 8706 respectively of the Central Excise Tariff. The vehicles manufactured by the appellants are meant for transport of goods and have a tipping function which can be used to unload material at the site. Both VECVL as well as MFTPL classified the various models of vehicles manufactured by them under Central Excise Tariff Heading 87042390 as tipper trucks and their chassis under CETH 870660042. The department was of the view that the motor vehicles as well as the chassis manufactured by the appellants are not trucks designed for highway use, but were dumpers designed for off highway use. Such vehicles were classified, as per Revenue, under 870410 as well as chassis under 87060043. The rate of excise duty on dumpers and tipper trucks were not different. In respect of chassis also the rates of duty were the same. However, there was difference in the rate of duty leviable under National Calamity Contingent Duty (NCCD) leviable under Section 136 of the Finance Act, 2001. In respect of complete vehicles - dumpers as well as tipper - NCCD was exempted under Notification No. 21/2005 .....

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04 10 will apply only to vehicles designed for off-highway use. iii) He submitted a copy of the product leaflets for the vehicles manufactured by VECVL and has drawn our attention to the various specifications. He particularly pointed out the facts that such vehicles are designed with very high pick up and capable of maximum speeds of 72 to 85 km. per hour which are possible only on road/ highways. He also drew our attention to the type of tyres used in such vehicles and pointed out that such tyres are those which are capable of running on roads. iv) He also submitted a catalogue for (Carmics dumper) which is not manufactured by the appellant but is representative of what a dumper is. He pointed out that such vehicle are capable of achieving only maximum speed 20 miles per hour and are fitted with off-road tyres. v) He read out the relevant heading 870410 and explained that the vehicles manufactured are not in the nature of on road vehicles and cannot be classified as proposed by the Department. 8. Ld. AR appearing for the Department justified the impugned order. He submitted that the description tipper is not found in the tariff. Tipper and dumper are used interchangeably. The Aut .....

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ed System Nomenclature. The HSN explanatory notes can serve as a useful guide in deciding the classification of the goods under the First Schedule to the Central Excise Tariff Act, 1985. The Hon ble Supreme Court in the case of CCE vs. Woodcraft Pvt. Ltd. -1995 AIR SCW 1063 (SC), has observed that HSN is a safe guide for ascertaining true meaning of any expression used in the Act unless there an expressed different intention indicated in the tariff itself. 12. The HSN explanatory notes in respect of 8704 10 which covers dumper designed for off-highway use are reproduced below for ready reference: Subheading Explanatory Notes. Subheading 8704.10 These dumpers can generally be distinguished from other vehicles for the transport of goods (in particular, tipping lorries (trucks) by the following characteristics: - the dumper body is made of very strong steel sheets; its front part is extended over the driver s cab to protect the cab; the whole or part of the floor slopes upwards towards the rear; - in some cases the driver s cab is half-width only; - lack of axle suspension; - high braking capacity; - limited speed and area of operation; - special earth-moving tyres; - because of their .....

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ugned orders. The same is set aside. 18. The second issue in respect of MFTPL is that during the period June, 2008 to February, 2011, the MFTPL has exported chassis fitted with engines but they paid Excise duty only @ 10% under claim of rebate whereas the applicable Excise duty during the relevant time was 10% plus specific Excise duty @ ₹ 10,000/- per chassis. The adjudicating authority has confirmed the demand of differential duty alongwith interest and penalties. However, the appellant has claimed that any differential duty, if paid, will also be refundable to them as much as goods have been exported. There is no dispute that the goods have been exported during the period June, 2008 to February, 2011. Admittedly, there is a short payment of duty by the appellant. However, the fact remains that if the differential duty is paid by the appellant the same will also be available to them as rebate since the goods have been exported. Consequently, we agree with the contention of the appellant that this leads to revenue neutral situation. Consequently, there is no justification for demand of duty which is set aside alongwith the interest and penalties. 19. In view of the above dis .....

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