Customs, Excise and Gold Tribunal - Delhi
Bajaj Tempo Ltd. And Ors. vs Collector Of Central Excise And Ors. on 24 August, 1987
Equivalent citations: 1987(14)ECC299, 1987(13)ECR1182(TRI.-DELHI), 1987(32)ELT150(TRI-DEL)
ORDER H.R. Syiem, Member (T)
1. The appellants, M/s. Bajaj Tempo Ltd. claim that their matador platform truck F-305 is a motor vehicle with body. This platform truck is shown below :-
According to the learned counsel for M/s. Bajaj Tempo, the platform, which is built over the chassis behind the cab, is a body. There are different kinds of bodies: some are covered bodies, some are partly covered, only with sides running round the platform, and some entirely open with only the platform over the chassis. All the three types can take and contain loads securely. The Collector (Appeals) relied on the definition in the Bombay Motor Vehicles Rules, 1959 which provided :
Body and loading platform :
Every goods vehicle including a trailer shall be equipped with a strong platform or body so constructed as to be capable of carrying the load for which it is used without danger to other road users and such that the load can be securely packed within or fastened to the body or platform.
2. Careful reading of this would give one the meaning that a platform is a body, because both are required to be constructed to enable the vehicle to carry the load safely and without danger to other road users. The vehicle must have a body in order to carry a load and that body can be either a platform or a covered structure.
3. The learned counsel said that the Assistant Collector had accepted that the platform truck was excisable under central excise Item 34/I/(2)(i). They marketed it as a platform truck. In letter dated 10th September, 1980, the Assistant Collector said that he had visited the factory on 6.9.1980 and recorded that it had been understood that the wooden body built on the chassis could be considered as a body or a platform of motor vehicle; he, therefore, considered that the wooden platform built on the chassis made it a "motor vehicle with body" for the purposes of classification of the motor vehicles under Tariff Item 34. After this, said the learned counsel, there could be no reason for a change.
4. The Collector (Appeals) relied on the Bombay Motor Vehicles rules on which they themselves relied, but he had misinterpreted the meaning of the law.
5. The counsel read paragraph 18 of 1985(20) ELT 280; 1985(22) ELT 513; 1980 (23) ELT 411; paras 14 and 15 of 1981 (8) 328; paras 12 and 13 of 1983 (13) ELT 1113.
6. The learned counsel for the department, however, completely supported the order of the Appellate Collector. He read Item 34 of the central excise tariff. According to him, the Bombay Motor Vehicles rule can aid in understanding the meaning of the word body since the word is not defined in central excise. It will be seen from the rule that there are two structures provided for by the rules, a platform and a body. If a platform was a body, there was no need, said the counsel, to mention the body, since platform would have been enough.
7. He supported the cross-appeal saying that the Collector was wrong to speak about six months from the date of the show cause notice. In accordance with Section 11-A of the Central Excises and Salt Act, account will have to be taken of the date of submission of the RT-12 that would be the relevant date.
8. The department is correct that a body is different from a platform and the understanding in knowledgeable circles is also thus. The Motor Vehicles Rule provides for a body and a loading platform and it is clear that the law recognises that a loading platform is not a body. The rule requires a vehicle to be equipped with a strong platform or body so constructed to be capable of carrying the load for which it is used without danger to other road users. There are loads for which a flat open platform will be enough and loads can be carried on it with complete safety; but there are loads which require sides to be provided all round the edge of the platform. Such loads, like sand, gravel, loose stones, loose coal cannot be carried in an open sided platform. Other loads, such as human passengers, cannot be carried in an open platform or even on a platform with sides. So, different loads require different constructions for their carriage by the vehicle; the law requires that each load should be carried in such a way that it poses no danger to other road users. A construction that is quite safe for one kind of load may not be sufficient for another load - the vehicle must have that kind of body or platform constructed that it becomes capable of carrying the load for which it is used. The assessment of the motor vehicles Item 34-1(2)01) is accordingly correct.
8A. The appellants question the authority of the Assistant Collector to reveiw his own order, because they say he had approved assessments of the vehicle before he issued the demand notice. The appellants say that the power of review must be expressly conferred by statute and such power has not been conferred on the Assistant Collector. It is quite correct that nobody can review his own orders and the Assistant Collector does not have that power; but this is not going to change the position in respect of the demand issued by the Superintendent and confirmed by the Assistant Collector's order dated 20th November, 1982. The demand always works backwards from the day it is issued - there is no point in issuing a demand for the future and nobody that I know has ever done it. Section 11-A under which the demand was issued prescribes such a course of action and I cannot accept any suggestion that for the pruported reason that the Assistant Collector cannot review his own order, he cannot recover duty short levied in the past. If he cannot, then we might as well abolish Section 11-A and, with it, Section 11-B. However, such a step will affect the assessee who, then, will never be able to claim refund, because here also the effect is on the past, and since the assessment has been approved and completed, it cannot be changed so as to permit the refund the claimant asks.
9. I can find no fault with the service of a demand under Section 11-A for any duty that may be found short. I do not know why the central excise proceeded in two proceedings, one for changing the assessment, and the other for recovery of duty. They could have had one proceeding; but they perhaps perceived this as the best method.
10. However, there is a true objection from the appellants' side that there was no suppression or fraud and that, therefore, the time limit under Section 11-A can run for only six months. It runs for six months from the relevant date - in this case the date of submission of the RT-12's. The demand shall be worked out only for all those RT-12's which were submitted within six months before the issue of the notice of demand. The central excise in their appeal (appeal No. Ex. 3039/83-B1) speak of "the normal time limit of 7 months and 7 days is applicable from 19th March, 1982". There is no such normal time limit. The time limit is only six months from the relevant date. If any RT-12 was filed within six months from the issue of the show cause notice that RT-12 falls within the time limit; if not, outside it.
11. The two sides shall act and complete action in accordance with the discussions written above.