- (1.) CLASSIFICATION of the motor cabs manufactured by the respondent is the question involved in this appeal, which arises out of a judgment and order dated 22. 09. 2005 passed by the Customs, Excise and Service Tax Appellate tribunal, South Zonal Bench, Chennai in Appeal No. E/616 of 2005.
(2.) RESPONDENT is engaged in body building on duty paid chassis. Indisputably, it amounts to manufacture within the meaning of Note 3 of chapter 87 of Central Excise Act, 1944 (for short "the Act"), which is in the following terms: "3. For the purposes of this Chapter, building a body or fabrication or mounting or fitting of structures or equipment on the chassis falling under heading No. 87. 06 shall amount to 'manufacturer' of a motor vehicle. " For carrying out its manufacturing activities, the respondent purchased duty paid chassis from Tata Motors Ltd. The seating capacity of the cabs for which the body building activity was being carried out by the respondent is 12 PLUS 1 (i. e. 12 passengers and one driver ). Indisputably, National Calamity Contingency Fund was created by finance Act, 2003 wherefor inter alia it was proposed to impose one per cent duty on motor cars and multi utility vehicles.
(3.) THE manufacturers of chassis in their invoices placed the said goods under Sub-Heading 8706. 29. Appellant, however, classified the said motor cabs under Sub-Heading 8702. 90 which has been specified for payment of National Calamity contingency Duty (NCCD) at one per cent for the period 1. 03. 2003 to 30. 09. 2003. Admittedly the said duty was not paid. A show cause notice was issued calling upon the respondent to show cause as to why an amount of Rs. 4,42,823/- should not be recovered from them in terms of Section 11a of the Central Excise Act read with Rule 4 (1)of the Central Excise Rules towards NCCD at one per cent on the motor vehicles with seating capacity of more than 6 but less than 12, excluding driver's seat as also a penalty and interest thereupon. Cause was shown to the said notice by the respondent.;