{"id":234679,"date":"2006-07-12T00:00:00","date_gmt":"2006-07-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bajaj-auto-ltd-vs-commissioner-of-central-excise-on-12-july-2006"},"modified":"2017-12-05T23:40:21","modified_gmt":"2017-12-05T18:10:21","slug":"bajaj-auto-ltd-vs-commissioner-of-central-excise-on-12-july-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bajaj-auto-ltd-vs-commissioner-of-central-excise-on-12-july-2006","title":{"rendered":"Bajaj Auto Ltd. vs Commissioner Of Central Excise on 12 July, 2006"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Mumbai<\/div>\n
Bajaj Auto Ltd. vs Commissioner Of Central Excise on 12 July, 2006<\/div>\n
Equivalent citations: 2006 (111) ECC 750, 2006 ECR 750 Tri Mumbai, 2006 (202) ELT 831 Tri Mumbai<\/div>\n
Bench: K Kumar, A T K.K.<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
K.K. Agarwal, Member (T)<\/p>\n
1. The appellants in this case are inter alia engaged in the manufacture of three wheeled tractor known as Auto Track and semi-trailers. They had claimed classification of the product as a tractor falling under Tariff Item 34(II) under the erstwhile tariff. The department did not agree with the classification proposed by them and passed a adverse order which was upheld by Commissioner (Appeals) against which an appeal was filed before the Tribunal. The Tribunal vide its Order No. 94\/87-B1 dated 13.02.1987 inter alia held that the auto track was classification under Tariff Item 34(I) of the earstwhile tariff as a motor vehicle. During the relevant time the word tractor was not defined anywhere in the earstwhile tariff.\n<\/p>\n
2. On coming into effect of the Central Excise Tariff, 1985. First Schedule to the Central Excise and Salt Act, 1944 was revised by the Tariff Act which inter alia contained detailed tariff entries, section notes and chapter Notes most of which were based on HSN. On realizing that as per the now Tariff the auto track was not classifiable as motor vehicle, they claimed classification of the said auto track under chapter heading 87,01 and also claimed exemption from payment of duty in terms of Sr. No. 1 of Notification 162\/86-CE dld.01.03.1986. The matter went up to the appellate Tribunal who vide their Order No. C-II\/1160-61\/WRB dated 11.04.2000 while taking note of its earlier order dtd. 13.02.1987 remanded the matter to the Deputy Commissioner of Central Excise giving liberty to both sides to produce fresh evidence and expert opinion of independent agencies who were conversant with the issue relating to automobiles and to decide the matter afresh. The tribunal while remanding noted that in their earlier order the definition of tractor was not there and that as definition has now been given in new tariff they may be required to depart from the ratio of the judgment delivered earlier. The matter was re-adjudicated by the Deputy Commissioner. During adjudication proceedings the appellants furnished technical write-up issued by the Chairman of the Institute of Engineers and some tribunal decisions in their favour. The Deputy Commissioner also addressed a letter to the Director, Automotive Research Association of India to inform the department about the certification issued by ARAT to the hauling unit in terms of Central Motor Vehicle Rules and another letter to Director, Vehicle Research & Development Establishment for an opinion whether the hauling unit could be considered as a tractor and also whether the auto track\/ auto trailer could be considered as a vehicle other than a conventional auto rickshaw.\n<\/p>\n
3. A letter was also issued to the Regional Transport Authority regarding registration allotted to the auto track on the basis of the report and certification issued by the ARAI, Pune. Reply from VRDE was received vide letter dtd. 02.04.2001 in which they informed that the nomenclature “tractor” was also used for hauling unit other than agricultural one and therefore the hauling unit could be considered as a tractor and the auto track could be considered as a vehicle other than conventional auto rickshaw. The Regional Transport Officer however informed that Auto Track Trailer was registered as a LMV Good Carriage. The matter was however decided against the appellant and the Deputy Commissioner did not disclose the technical advices received from RTO, VRDE and ARAL Subsequently on directions of Commissioner (Appeals) they were supplied with the copy of the letter written to the various authorities and replies received from them. The matter was again adjudicated by the Commissioner (Appeals) who upheld the order of the Deputy commissioner and observed that the vehicle war, registered as a LMV with the RTO and rejected the technical write-up given by the Chairman of Institute of Engineer and went by the definition of tractor as understood in common parlance where it is basically meant for agriculture use.\n<\/p>\n
4. The learned advocate submitted that the Commissioner (Appeals) has relied heavily on the finding\/observation made by the tribunal in its order dtd. 13.02.1987. It was submitted that this order was rendered in the context of erstwhile tariff item of the First Schedule of the Central Excise and Salt Act, 1944. The item in question in the erstwhile First Schedule and headings 8701 and 8704 of the Central Excise Tariff Act, 1985 arc different. There was no definition of tractor in the erstwhile First Schedule whereas the tractor was defined in Chapter Note 2 of Chapter 87 of the Central Excise Tariff in the Tariff Act. Further the Tribunal in its own order has in Para 7 held that in view of the above they would have to necessarily depart from the ratio of the earlier order dtd. 13.02.1987.\n<\/p>\n
5. Attention was also invited to the CEGAT decision on a similar issue in the case of Volvo India Pvt. Ltd. v. Commissioner of Customs, Nhava Sheva  wherein it was held that vehicle used to haul a semi-trailer and duly fitted with ‘fifth wheel assembly’ for connecting such semi-trailer can be appropriately described as ‘truck-tractor’ as per definition provided under Heading 87.01 of Customs Tariff Act and not under Heading 87.04 as ‘truck’. It was submitted that the vehicle manufactured by them is identical in nature where the disputed product is used for hauling semi trailer and has fifth wheel attached to it and the vehicle on its own cannot carry any goods except through the semi-trailer. Further Chapter Note 2 of Chapter 87 defines tractors as vehicles constructed essentially for hauling or pushing another vehicles, appliance or load, whether or not they contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seed, fertilizer or other goods. Explanatory Note to Chapter Heading 87.01 of HSN reads as follows:\n<\/p>\n
It should be noted that agricultural machines designed for fitting to tractors as interchangeable equipment (ploughs, harrows, hoes, etc.) remain classified in their respective headings even if mounted on the tractor at the time of presentation. The tractive unit in such cases is separately classified in this heading.\n<\/p>\n
Tractors and industrial working tools are also classified separately when the tractor is designed essentially for hauling’ or pushing another vehicle or load, and includes, in the same way as an agricultural tractor, simple devices for operating (raising, lowering, etc.) the working tools. In such a case, the interchangeable working tools are classified in their appropriate headings, even if presented with the tractor, and whether or not mounted on it, while the tractor with its operating equipment is classified in this heading.\n<\/p>\n
In the case of articulated motor lorries with semi-trailers, factors coupled to semi-trailers, and heavy duty tractors coupled, in the same way as to semi-trailers, to working machines of Chapter 84, the hauling element is classified in this heading whereas the semi-trailer or the working machine is classified in its appropriate heading.\n<\/p>\n
Articulated vehicle has been defined in the Dictionary of Automotive Engineering as under:\n<\/p>\n
 “Articulated vehicle’ Vehicle consisting of two or more usually separable wheeled units, and consisting of a towing vehicle, or tractor, and a towed unit, such as a Semi-trailer. Articulation is primarily in the steering mode, though some degree of horizontal axis articulation will be necessary to enable the vehicle to negotiate road surface irregularities The term usually refers to a tractor and semi-trailer commercial vehicle combination, though it may also describe a close coupled city bus.\n<\/p>\n
6. In view of these definitions it is amply clear that the vehicle manufactured by them was tractor as it met with all the criteria laid down in Chapter Note 2 of Chapter 87 and the explanatory notes. This view is further supported by the opinion given by the Automotive Research Association of India and Vehicle Research & Development Establishment which reads as under:-\n<\/p>\n
(A) The ARAI clarified as follows:\n<\/p>\n
Tractor means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion)’, but excludes a road roller.\n<\/p>\n
With the above definition it is clear that tractor does not refer to agricultural vehicle but refers to a motor vehicle. The hauling unit is referred as tractor irrespective of whether it is three wheeled or more wheeled, and we do agree that the hauling unit must always be coupled to the trailer to serve the purpose of transportation. The agricultural tractors are being defined separately under the CMVR and separate rules for the same are under revision by the Technical Committee under CMVR <\/p>\n
(b) The VRDE clarified as follows:-\n<\/p>\n
 Kindly note that the nomenclature “tractor” is also used for ‘hauling unit’ other than the agricultural one and therefore the hauling unit can be considered as a tractor and also the auto track\/auto trailer can be considered, as vehicle other than conventional auto rickshaw.\n<\/p>\n
7. These opinion were sought by the department only but have not been discussed in the order passed by the lower adjudicating authorities. In view of this it is clearly established that the vehicle manufactured by them can be considered as a tractor only and not a LMV. The registration by R.T.O. has been sought by the customers and not by the appellants and registration is for a different purpose and therefore cannot be made basis of classification. It was submitted that once any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in absence of any definition being given in the enactment the meaning of the terms in common parlance or commercial parlance has to be adopted as held by the Apex Court in the case of Indo International Industries v. Commissioner of Sales Tax, U.P.<\/a> 1981 (008) E.L.T. 325M(SC).\n<\/p>\n
8. The learned S.D.R. Shri Dewalwar on the other hand submits that the Tribunal has in appellants’ own case vide Order dtd. 13.02.1987 held that the goods were to be classified as motor vehicle and not as tractor and tractor has multipurpose uses such as ploughing field, for carrying agriculture product to near market etc. as against the present case where it has to be used for the limited purpose of carrying goods. This fact is also supported by the registration given by RTO as a LMV carriage good rather than as tractor.\n<\/p>\n
9. We have considered the submissions. We find that the Commissioner has laid a great emphasis on the earlier decision of the Tribunal ignoring the fact that in the remand proceedings the Tribunal itself has observed that the fact that the new tariff defined the meaning of the tractor and also that positive evidence has been placed before Tribunal would necessarily make them to depart from its earlier view. We note that once tractor has been defined in chapter note 2 of chapter 87 and once the vehicle in question conforms to the definition of tractor as given in the Chapter Note the vehicle cannot be classified as Light Motor Vehicle. It would be useful to reproduce chapter note 2 of chapter 87 which reads as under:-\n<\/p>\n
 for the purpose of this Chapter “tractors” means vehicles constructed essentially for hauling or pushing another vehicle, and appliance or load, whether or not they contain subsidiary provision for the transport in connection with the main use of the tractor of tools, seeds, fertilizer or other goods.\n<\/p>\n
10. It is not disputed by the Revenue that vehicle in question comprise of hauling unit, and semi-trailer. It is immaterial whether they are cleared together or separately as it is also emphasized in the chapter note 2 that they may or may not contain subsidiary provision for the transport of goods…. Explanatory notes to this chapter heading further state that articulated motor lorry with semi-trailer, tractors coupled to semi trailers 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 ARIA which were sought by the department after forwarding them 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 kinds of tractor including road tractors for semi-trailers. The sole use of the goods is to haul a semi-trailer and it is always used as a prime mover 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. where identical goods were held to be classifiable under Chapter Heading 87.01 and not under heading 84.04.\n<\/p>\n
11. In view of above, we allow the appeal and set aside the order of Commissioner (Appeals).\n<\/p>\n
(Pronounced in Court)<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Mumbai Bajaj Auto Ltd. vs Commissioner Of Central Excise on 12 July, 2006 Equivalent citations: 2006 (111) ECC 750, 2006 ECR 750 Tri Mumbai, 2006 (202) ELT 831 Tri Mumbai Bench: K Kumar, A T K.K. ORDER K.K. Agarwal, Member (T) 1. The appellants in this case are inter […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-234679","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nBajaj Auto Ltd. vs Commissioner Of Central Excise on 12 July, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bajaj-auto-ltd-vs-commissioner-of-central-excise-on-12-july-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bajaj Auto Ltd. vs Commissioner Of Central Excise on 12 July, 2006 - 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