BHARAT EARTH MOVERS LTD. Vs. COMMR. OF C. EX., CUS. & S.T.
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL BANGALORE
BHARAT EARTH MOVERS LTD.
Commr. Of C. Ex., Cus. And S.T.
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ARCHANA WADHWA -
(1.) ALL the four stay petitions are being disposed of by a common order as the issue involved in all of them is identical, though they arise out of four different orders -in -original.
(2.) The total duty involved in all four stay petitions is to the extent of around Rs. 45,00,000/ -. The appellant is engaged in the manufacture of vehicles which are primarily used in defence. The said vehicles are exempted from payment of excise duty vide Notification No. 63/95. The dispute in the present petition relates to the imposition of automobile cess in terms of Automobile Cess Rules 1984 which stands enacted by exercising powers conferred in terms of Section 9 of Industrial (Development & Regulation) Act, 1955. The demand stands confirmed on the ground that the said defence vehicles being manufactured by the appellants are, though exempted from payment of duty of excise, there is no such exemption in respect of Automobile Cess. Learned advocate appearing for the appellant fairly agrees that the main issue i.e. when there is an exemption from excise duty, whether cess would automatically be exempted, stands decided against them by the Hon'ble High Court of H.P. in the case of Info Farm Tractors & Motors Ltd. v. U.O.I. [2008 (222) E.L.T. 184 (H.P.) as affirmed by the Hon'ble Supreme Court of India in, 2008 (230) E.L.T. A 85 (S.C.).
(3.) HOWEVER , he submits that the said decision was in respect of tractors whereas the vehicles in question are specifically designed defence vehicles. By drawing our attention to the provisions of Section 9 of the Industries (Development & Regulation) Act, 1951, he submits that only the scheduled industries and scheduled goods can be levied to cess. He submits that item 7 of the 1st schedule to the said Act mentioned transportation whereas item 37, relates to defence industries. It is the contention of the appellant that they cannot be held to be automobiles industry inasmuch as the vehicles being manufactured by them are neither motor cars, buses, trucks, motor cycles and the scooters. On the other hand they specifically fall under defence industries wherein only arms and ammunitions can be levied to cess. He also draws our attention to various circulars issued by the Board clarifying that earth moving machinery and hydraulic excavators cannot be considered to be falling under the automobile industries inasmuch as the same are not meant for carrying passengers or goods. As such, he submits that inasmuch as the appellant does not fall under the scheduled industry, the confirmation of automobile cess against them is not appropriate. He accordingly prays for unconditional stay.;
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