TMI Blog2018 (3) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-highway use under 8704 10. They are classifiable, as claimed by the appellant under 8704 2390 as tipper trucks likewise the classification of chassis also will fall under 87060042 and not under 87060043 as claimed by the Department. Demand of differential duty - case of Revenue is that 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 - Held that: - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-CE dt. 13.05.2005. But NCCD was payable on the dumper chassis but not payable on tipper chassis. The department, after conclusion of investigation, and issue of show cause notice, vide the impugned orders, ordered for classification of the commercial vehicle and their chassis as dumpers and dumper chassis respectively. This resulted in the demand of NCCD on the quantity of chassis cleared by the two manufacturers during the disputed period. Penalties were also imposed on the assessee. In respect of VECVL, penalty was also imposed on Sh. Nitin Nagda, General Manager. Aggrieved by the impugned orders, the present appeals have been filed. 5. The relevant tariff heading 8704 is as under for ready reference: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are dumpers. ii) Reference has been made to HSN explanatory notes pertaining to the heading 8704. 7. Ld. Advocate argued the case mainly as follows: i) The motor vehicle manufactured by the appellant are tipper trucks designed for road / on-highway used and cannot be called dumper meant for off-highway use. ii) The CETH 8704 10 claimed by the Department is not applicable to the vehicles manufactured since 8704 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only in respect of chassis cleared with engine. For the full vehicles there is no differential duty between the two competing classifications. The NCCD payable also stands fully exempted for all fully manufactured vehicles. However, in respect of chassis fitted with engines, NCCD is payable in respect of chassis for dumpers whereas the same is not payable in respect of other chassis. 11. 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 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 tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -headings, we are of the view that the motor vehicles manufactured by the appellants do not fall in the category of dumpers designed for off-highway use under 8704 10. They are classifiable, as claimed by the appellant under 8704 2390 as tipper trucks likewise the classification of chassis also will fall under 87060042 and not under 87060043 as claimed by the Department. 17. In the light of the above discussions, we find no justification in the demand for differential duty of NCCD made by the adjudicating authority in the impugned 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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