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2019 (4) TMI 176

item 8710 00 00 or not? - benefit of N/N. N/N. 6/03-CE dt.1.3.2003 - Held that:- On-going through the certificate issued by VRDE and tender documents placed on record, we find that it show that these documents show that the requirement of Boarder Security Force is for light armoured troop carrier and as per the certificated issued Vehicle Research Development Establishment that the vehicles manufactured by the appellants are special purpose armoured vehicle. - Admittedly, the vehicle in question is a special purpose vehicle, therefore, the same have merited classification under tariff heading 8705 90 00. We have also examined HSN Explanatory Notes to chapter 87.10 it excludes cars and lorries of the conventional type, armoured or equipped with subsidiary removable armour which will cover under headings 87.02 to 87.05 as applicable. Therefore, it is clear that 87.10 covers tanks and other armoured fighting vehicles in the HSN. Therefore, light armoured bulletproof vehicles are specifically excluded from classification under tariff heading 87.10. - The bulletproof vehicles manufactured by the appellants are light armoured bulletproof vehicles is not disputed. The feature of t .....

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(Determination of Price of Excisable Goods) Rules, 2000. In view of this, various show cause notices were issued to the appellants for different period and the demands were confirmed against the appellants alongwith the interest and penalties were imposed all the appellants. Against the said orders, the appellants are before us. 3. Ld. Counsel for the appellant submits that the bulletproof SPVs are appropriately classifiable under tariff item 8705 90 00 of CETA. These vehicles are meant for use by Army and Paramilitary forces. The fact that these vehicles were for special purpose vehicles has also been substantiated by the VRDE certificate and tendered documents. The opinion of the agencies such as ARAI or VRDE is reliable as held by this Tribunal in the case of Mann Tourist Transport Service (P) Ltd. vs. CC (I), Nhava Sheva-2015 (319) ELT 153 (Tri.-Mum.). He also relied upon the decision of Hon ble Apex Court in the case of Bajaj Auto Ltd.-2015 (325) ELT 465 (SC). 4. He further submits that receipt of the orders for supply of armoured bulletproof vehicles from Armed Forces, BSF and CRPF, etc. M/s. Tata supplied chassis to the JCBL for undertaking the activity of body building and .....

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fighting vehicles will continue to be classified under chapter 8710 irrespective of the fact that such vehicles may or may not fitted with weapons. The bulletproof SPVs manufactured by the appellant are not armoured fighting vehicles as is the requirement of heading 8710 and are only armoured vehicles. This bullet proof SPVs have a defensive capability but they do not possess the capability to fight back and are not fitted with guns, mortars or rocket launchers etc. which are used for fighting or combating. The bullet proofing of the vehicles only provides a defensive cover to the personnel in the vehicle. It does not impart any fighting capability to the vehicle. Reliance placed by the adjudicating authority on HSN Explanatory Notes to the chapter heading 8710 is not correct to hold that this heading excludes cars and lorries of the conventional type equipped with subsidiary removable armour and the items manufactured by the appellant are appropriate classifiable under heading 8705. 6. With regard to the valuation aspect under Rule 10A of the Valuation Rules, it is his contention that that appellant has not undertaken the job work on behalf of the M/s.Tata as the body of vehicle h .....

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of persons or goods (for example, breakdown lorries, crane lorries, fire fighting vehicles, concrete-mixers, lorries, spraying lorries, mobile workshops, mobile radiological units. 8705 10 00 Crane lorries 8705 20 00 Mobile drilling derricks 8705 30 00 Fire fighting vehicles 8705 40 00 Concrete mixer lorries 8705 90 00 Other 8710 00 00 Tanks and other armoured fighting vehicles, motorised, whether or not fitted with weapons, and parts of such vehicles 8711 Motorcycles (including mopeds) and cycles fitted with an auxiliary Motor, with or without side cars; 8711 10 With reciprocating internal combustion piston engine of a cylinder Capacity not exceeding 50 cc 8711 10 10 Mopeds 8711 10 20 Motorised cycles 8711 10 90 Other 8711 20 With reciprocating internal combustion piston engine of a cylinder Capacity exceeding 50 cc but not exceeding 250 cc Scooters: 8711 20 11 of cylinder capacity not exceeding 75 cc 8711 20 19 Others 12. HSN Explanatory Notes to chapter heading 87.10 are also extracted below for better appreciation of the facts of the case:- 87.10 Tanks and other armoured fighting vehicles, motorised, whether or not fitted with weapons, and parts of such vehicles. This heading c .....

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f the decision of this Tribunal in the case of Mann Tourist Transport Service (P) Ltd. (supra) wherein this Tribunal has observed as under- 5.1 In the remand order dated 7-10-2010, this Tribunal had clearly directed the Revenue to get the vehicle examined and obtain expert opinion from agencies such ARAI/VRDE with regard to the seating capacity and determined the classification issue. When the said order was passed, the vehicle was very in the possession of the department and they could have got necessary examination/verification done, which they failed to do. Even after the Apex Court decision, before allowing release of the vehicle, the said action could have been undertaken. This shows gross negligence and complete disregard on the part of the department to the directions given by this Tribunal. Thus, the entire blame for the inaction lies squarely on the department. 5.2 In the letter dated 19-11-2012, ARAI has not given any opinion on the seating capacity of the impugned vehicle They have merely observed that the vehicle was originally designed for seating 5 persons. However, they advised the department to verify from the concerned vehicle manufacturer about the type approval c .....

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ed motor lorry with semi-trailer, tractors coupled to semitrailers, the hauling unit is classifiable under Heading 8701. In the present appeal the vehicle in question is nothing but articulated motor vehicle as per the definition of articulated motor vehicle given in the automotive dictionary. This view also find supports from two opinions of VRDE and VRIA which were sought by the department after forwarding then certificates issued by CMVR and were obtained at the department s own instance. All these clearly establish that vehicle in question is tractor and not LMV. The emphasis on non-use for agriculture purpose is totally misplaced as Heading 8401 includes all kings of tractors including road tractors for semi-trailers. The sole use of the goods is to haul another trailer. It has no pay load capacity of its own and is therefore not capable of transporting any goods on its own. These facts are also not disputed by the department. As rightly said by learned advocate Shri Hidaytulla that once the definition of tractor is given in the statute, we cannot go by meaning in common parlance. We are fully in agreement with the view taken by the tribunal in the case of Volvo India Pvt. Ltd .....

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