Customs, Excise and Gold Tribunal - Tamil Nadu
Mahindra Nissan Allwyn Ltd. vs Collector Of Central Excise on 19 June, 1991
Equivalent citations: 1991(37)ECR68(TRI.-CHENNAI)
ORDER
V.P. Gulati, Member
1. By this application the applicants have pleaded for dispensation of pre-deposit of duty of Rs. 5,01,317.18 demanded under Rule 9(2) of the Central Excise Rules, 1944 read with Section 11A of the Central Excises and Salt Act, 1944, by the Collector of Central Excise, Hyderabad in his order dated 6.12.1990. Since we propose to dispose of the appeal itself today on a short point of law, with the consent of both the parties, we grant dispension of the pre-deposit of the duty pending disposal of the appeal.
2. Appeal No. 1239/91--The Ld. advocate for the appellants pleaded that the appellants are manufacturers of various types of commercial motor vehicles and among them the items manufactured by them are Ambulances and Cash vans. He has pleaded that the departmental authorities had earlier approved the classification of the aforesaid items under Chap. Heading 87.03 (for Ambulances) and 87.04 (for Cash vans) extending the benefit of Notification No. 463/86 dated 19.12.1986. However, the Department re-examined the position and raised the demand in respect of these two items holding that the benefit of Notfn. 463/86 was not available. He pleaded that the said notification exempts all light commercial vehicles of payload not exceeding 4000 kgs. employing indirect injection type diesel engines and falling within Chapter 87 from payment of duty in excess of 10% ad valorem provided that the manufacturer is manufacturing the vehicles under a programme duly approved by the Ministry of Industry. The only objection taken by the Ld. Lower authority is that the appellant's two vehicles referred to above are not light commercial vehicles. In this connection he drew our attention to para 11 of the Order-in-original. He has pleaded that the Ld. lower authority has not spelt out as to what are the types of vehicles which will pass the muster as light commercial vehicles' as envisaged in the notification and he has merely gone by the Chambers Twentieth Century Dictionary. He has pleaded that so far as the notification is concerned there is no definition for light commercial vehicles and the understanding of the trade is that any vehicle which is other than motor vehicle in the nature of Trucks etc. and is used in the course of trade and commercial business, including ambulances/cash vans, would be covered by the term 'light commercial motor vehicles'. He has pleaded that the matter had also been considered by the Board and instructions issued to the Ld. Collector as to what type of vehicles could be considered as light commercial vehicles as covered by the notification. He has pleaded that the contents of this Board's letter were not made available to the appellants nor the Ld. Collector has adverted to the said instructions in his order. He has pleaded that the Ld. Lower authority has resorted only to the dictionary meaning in holding the vehicles in question to be not answering to the description of light commercial vehicles. His plea is that the capacity of the vehicle is determined by the type of chassis and the engine fitted thereto and the exemption, therefore, should be related to the capacity of the vehicle as determined by the types of chassis and engines fitted to the same and if that is taken into consideration the vehicles in question will be found to be eligible for the benefit of the notification. He has pleaded that since the necessary requisite of pay-load capacity and also the other requirements in terms of the proviso to the notification also are satisfied, the appellants should be considered to be entitled to the benefit of notification 463/86.
3. The Ld. SDR pleaded that the Ld. lower authority had no doubt gone by the dictionary meaning but he has taken into consideration the instructions of the Board and then only decided the case. He, however, could not point out as to the contents of the instructions having been dealt with in the order. He has pleaded he has no objection to the remand of the matter to the lower authority for deeper consideration of the matter.
4. We observe that the term 'light commercial vehicles' has not been defined in the notification nor the Ld. lower authority has gone by any authoritative literature regarding any such definition in arriving at his conclusion. He has merely gone by the dictionary meaning of the term 'commercial vehicles' without taking into account the payload capacity and the type of engines fitted to the ambulances/cash vans. Light commercial vehicle is a well understood term in the trade and it was, therefore, imperative that the lower authority should have made enquiries with the trade and also referred to the authoritative literatures on the subject before arriving at the conclusion. The Ld. lower authority in spite of the plea of the appellants that the Central Board of Excise & Customs has issued instructions has not dealt with the issue in the context of the instructions which might have a bearing on the issue involved in this regard. In any case, even if under the instructions the benefit of notification was not to be made available, it was necessary for him to have referred to the same in the impugned order to enable us to appreciate the matter. In view of the above discussion we hold that the Learned lower authority's order is not a proper one and we, therefore, set aside the same and direct the learned lower authority to re-adjudicate the matter de novo in the light of what we have slated above and also after affording an opportunity of hearing to the appellants. Ordered accordingly.
(Pronounced in the open Court).