TMI Blog2002 (1) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ice having been waived by the importer who was orally communicated this view, he was heard by the Commissioner, who passed orders confirming the proposal in the notice. The appeal from the Commissioner's order came before this Tribunal in October, 1999. The Tribunal remanded the matter to the Commissioner for adjudication afresh, after considering the fresh evidence relating to the product. The appeal now before us is against the order passed in remand proceedings. In that order the Commissioner has confirmed the classification proposed by the department, confiscated the goods with an option to redeem them on payment of duty and imposed a penalty on the importer. 2. It is necessary at this stage to reproduce the specifications of the vehicle. The goods were described in the invoice as Formula K Indy Kart single seat go-karts, complete with accessories. The literature published by Formula K International Limited, Denbighshire, U.K., the manufacturer, gives the following specifications for the Indy Kart. Go-kart- Passenger Capacity Single seater Weight 180 kgs. Speed 45 kmph Instrumentation None ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssification under Heading 95.08. 5. The Technical Member was unable to agree with this view. He was of the view that the applicability of the definition in the Motor Vehicles Act, 1939 was not relevant. The object of the Motor Vehicles Act was very different from that of the Central Excise Tariff Act. It was therefore not proper for considering an entry under the latter Act to rely upon its definition in the former. He noted that the claim made by the manufacturer and the fact of sales by it to various customers such as transport companies, industrial houses, hotels, tea estates, supported the department's contention, that the go-kart is meant for transport of persons. He noted that the Explanatory Notes to Harmonized System of Nomenclature mentioned that Heading 87.03 inter alia included "golf carts and similar vehicles". He found that the reliance by the appellant before him upon of classification under 95.08 (mentioned in the Explanatory Notes to HSN) to "dodg'em" cars was relevant because the goods had not been shown to be "dodg'em" cars. Taking the overall view of the entire material on record, including the specifications of the goods and submissions, he confirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instrumentation such as speedometer. We agree that the go-kart considered in Leisureland Pvt. Ltd. v. CCE was fitted with a speedometer and odometer, lights and horn, when the goods under consideration lacks them. However, the presence of a speedometer and odometer, as far as we can see, is only relevant for the purpose of the Motor Vehicles Act and the rules framed therein. That Act makes it mandatory for the speedometer to be fitted to a vehicle although we do not think that it requires an odometer to be fitted. We do not find it possible to agree that, because the go-kart under consideration by us lacks such instrumentation as speedometer and odometer, lights and horn, and it meant for seating only one person, it ceases to be a motor vehicle for the transport of persons but it becomes only an item for use in the amusement park. A vehicle which lacks significant instrumentation, lights and horn is still capable of being used on public roads. The capability for use on public roads is not, however, the criteria. The majority view in Leisureland Pvt. Ltd. v. CCE was that Heading 87.03 was not limited to motor vehicles designed for use upon roads. It had noted that Tariff Item 34 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant that the go-kart is not principally designed for the transport of persons. According to him since it is not capable of being driven on roads and it is used to carry one person around a fixed track, it is not designed for such purpose. The term 'transport' should not be construed in the narrow sense that carrying persons around a fixed tract is transportation. He also contends that the manufacturers in the present case has made a claim that it is principally designed for use in an amusement park. 12. The meaning of the word 'transport' with which we are concerned is to carry goods or persons from one place to another. The argument that because the transport begins and ends at one point around a track there is no transport is simplistic. It is like saying that a person who returns home after going to his place of work has not been transported. No doubt the transport in a go-kart of a person may not be for a purpose such as business, etc. It is transport for pleasure or for the thrill of racing. It however, continues to be transport. A person who goes for a joy ride in an aeroplane has certainly been transported from the ground up to a certain height and a certain d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons only for purposes other than commercial, it should be classified under Chapter 95 is rebutted. The Explanatory Notes to Heading 95.08 under the HSN reads as follows. "Fairground amusements, travelling circuses, travelling menageries and travelling theatres fall in this heading provided they comprise all the essential units required for their normal operation. The heading also includes items of auxiliary equipment provided they are presented with, and as components of, these various amusements, notwithstanding that when presented separately such items (e.g., tents, animals, musical instruments, power plants, motors, lighting fittings, seats, and arms and ammunition) would fall in other headings of the Nomenclature. Subject to the provisions of Note 1 to this Chapter, articles which are identifiable as designed solely or principally for use as parts and accessories of such amusements (e.g., boats for swings and water-chutes), remain classified here when presented separately." 15. The go-kart that is under consideration before us is an individual item, capable of being operated on its own, and had not been shown to be a part of a larger installation. As we have not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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