Custom, Excise & Service Tax Tribunal
M/S. Tatra Trucks India Ltd vs Cce, Chennai on 23 April, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. E/28/2007 (By Assessee)
Appeal No. E/04/2007 (By Department)
(Arising out of Order-in-Appeal No.66/2005 (M-III) dated 8.9.2005 passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Mr. P. G. Chacko, Member (Judicial)
Honble Mr. P. Karthikeyan, Member (Technical)
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. Tatra Trucks India Ltd.
CCE, Chennai Appellants
Vs.
CCE, Chennai
M/s. Tatra Trucks India Ltd. Respondents
Appearance Shri S. Raghu, Advocate for the Assessee Dr. Nitish Birdi, SDR, for the Revenue CORAM Honble Mr. P. G. Chacko, Member (J) Honble Mr. P. Karthikeyan, Member (T) Date of Hearing: 23.04.2008 Date of Decision: 23.04.2008 Final Order No. ____________ Per P. G. CHACKO One of the appeals is by the Revenue and the other by the assessee, both against the same order of the Commissioner (Appeals). The assessee is engaged in the manufacture of what they call Dumper [SH 8704.30] and the department calls Dumper Chassis [SH 8706.490. A show-cause notice was issued to them for recovery of National Calamity Contingent Duty (NCCD) at 1% on the dumper chassis in terms of Section 136 of the Finance Act, 2001 and for imposing penalty for non-payment of NCCD. The original authority confirmed the demand against the assessee and imposed on them a penalty of Rs.10,000/- after holding that (a) the assessees product was only dumper chassis [SH 8706.49] and could not be considered as incomplete or unfinished dumber having the essential character of dumper for classification under SH 8704.30; (b) NCCD was leviable on this product and (c) the benefit of Notification No. 67/95-CE was not available to NCCD. In the appeal filed by the assessee, learned Commissioner (Appeals) endorsed the view taken by the lower authority that their product was dumper chassis rather than dumper. But the appellate authority held NCCD to be a duty of excise for purposes of Notification No. 67/95-CE and accordingly granted the benefit of exemption to the assessee. At present, the assessee is aggrieved by the concurrent view taken by the lower authorities to the effect that their product is dumper chassis and not dumper. The Revenue is challenging the grant of exemption under Notification No. 67/95-CE to the assessee in respect of NCCD.
2. After hearing both sides and considering the case law cited by them, we find that the question whether NCCD is a duty of excise for purposes of Exemption Notifications issued under Section 5A of the Central Excise Act has been considered and answered in the affirmative in Toyota Kirloskar Motor Pvt. Ltd. Vs. CCE, Bangalore [2007 (82) RLT 828 (CESTAT Ban.)], wherein the benefit of Notification No. 108/95-CE dated 28.8.1995 was held to be admissible to NCCD leviable under Section 136 of the Finance Act, 2001. We agree with that decision, which was rendered after examining the relevant provisions of the Finance Act and considering a Circular of the CBEC. The contention raised by the Revenue that NCCD is only a surcharge and not a duty of excise cannot be accepted. The Revenue, in their appeal, has also claimed support from the Supreme Courts judgment in Union of India & Ors. Vs. Modi Rubber Limited & Ors. [1986 (25) ELT 849 (SC)], wherein it was held that exemption from duty of excise did not mean exemption also from Special Excise Duty, Additional Excise Duty or Auxiliary Duty. We find that this case law is not applicable to NCCD in view of sub-section (3) of Section 136 of the Finance Act, 2001, which reads as under:-
(3) The provisions of the Central Excise Act, 1944 and the rules made there under, including those relating to refunds and exemptions from duties and imposition of penalty, shall, as far as may be, apply in relation to the levy and collection of the National Calamity duty leviable under this section in respect of the goods specified in the Seventh Schedule as they apply in relation to the levy and collection of the duties of excise on such goods under that Act, as the case may be.
For the aforesaid reasons, the Revenues appeal is dismissed.
4. The question arising in the assessees appeal is whether their product is dumper as claimed by them or dumper chassis as claimed by the Revenue. It is the submission of the assessee that the item has the essential character of a dumper and therefore, as per Rule 2 of the Rules of Interpretation of the First Schedule to the Central Excise Act, it should be classified as the finished goods [dumper]. We have seen pictures of the product in question and a fully built dumper. Both have the body of a drivers cabin built on the chassis. The only difference appears to be is that the product in question does not have the rest of the body of the fully built dumper. It is this part of the body of dumper which is lifted by tipping cylinder. Materials collected inside this box-like body can be dumped by this lifting mechanism. It appears to us that the tipping cylinder along with the hydraulic pipelines present in the chassis, alone, cannot bring about dumping of materials. The box-like body is also essential for this purpose. Hence it cannot be said that the product in question, which does not have the box-like movable body, has the essential character of a fully built dumper. Hence the subject goods can only be classified under SH 8706.49 as dumper chassis and not under SH 8704.30 as dumper.
In the result, the assessees appeal also gets dismissed.
(Operative portion of the order was pronounced
in open court on 23.4.2008)
(P. KARTHIKEYAN) (P.G. CHACKO)
Member (T) Member (J)
Rex
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