1. The issue involved in this appeal filed by M/s. Bajaj Tempo Ltd., against the Order-in-Appeal No. P/83/92 dated 30-3-1992 passed by the Collector (Appeals) Pune, is whether the three wheeler motor vehicles and chassis therefor manufactured by them and described as "Tempo, three wheeler autorickshaw classifiable under Subheadings 8703.00 and 8706.30 respectively of the schedule to the Central Excise Tariff Act are eligible for exemption under Notification No. 162/86-C.E., dated 1-3-1986 or the product is not an autorickshaw and consequently not eligible for benefit of the said Notification, as held by the Collector (Appeals) in the impugned Order.
2. Briefly stated the facts are that M/s. Bajaj Tempo Ltd., manufacture, inter alia, Tempo three wheeler Autorickshaw and chasis therefor, which were classified by them under Sub-headings 8703.00 and 8706.30 respectively and they claimed concessional rate of duty under Notification No. 162/86, dated 1-3-1986; that the classification lists effective from 1-3-1989 and 20-3-1990 were approved by the Assistant Collector allowing the concessional rate of duty; that on an application filed by the Department, Collector (Appeals), under the impugned Order, disallowed the exemption under the Notification holding that as per the Notification S.O. 436 (E) dated 12-6-1989, issued under Section 41(4) of the Motor Vehicles Act, the vehicle in question is not an autorickshaw as it has the seating capacity for six passengers (excluding driver).
3.1. Shri C. S. Lodha, learned Advocate, submitted that the impugned vehicles are manufactured by them since 1977; that after proper scruitny and examination, the proper officer approved the classification list from 1977 onwards as 'autorickshaw' that Chapter IV of the Motor Vehicles Act deals with the subject of Registration of motor vehicles; that sections 39 and 40 of the Motor Vehicles Act (M.V.Act) provides that no person shall drive a motor vehicle unless it is registered and every owner of a vehicle shall get the vehicle registered by a registering authority; section 41 of the M.V. Act, provides the method for getting the vehicles registered, i.e., application, fee etc.; Section 41(4) provides that in addition to the other particulars required to be included in the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design, construction and use of the motor vehicle, by notification specify; that in exercise of the powers conferred under Section 41(4), the Central Government issued Notification No. 436(E), dated 12-6-1989, specifying the types of motor vehicles mentioned in the Table annexed to the said notification as the type in respect of the motor vehicle specified in the corresponding entry; that under the broad heading 'Light Motor Vehicle', the type of motor vehicles specified were Three Wheelers-Passenger vehicle Autorickshaw, Tempo, Motorised Cycle Rickshaw and Invalid Carriage; that for the purpose of the said Notification, the distinction has been made even between ambulance and animal ambulance and also between autorickshaw which could carry three passengers and other autorickshaws which could carry more than three passengers. The learned Advocate further submitted that the definition of autorickshaw given in the said Notification was for a very limited purpose, namely, to indicate on a registration certificate the type of the vehicle; that the said notification was not intended and cannot be applied to mean that it embodied the commercial undertaking of 'autorickshaw' as is sought to be done in the impugned Order; that as the Excise Tariff does not define the expression 'Autorjckshaw', the said expression must take its meaning and colour from the meaning in which it is generally understood in Commercial parlance as well as in Common parlance; that it is well settled that one has to be extremely cautious in importing the definition given in a particular statute to a particular expression for fulfilling a particular need to other taxation statues.
3.2. In support of this contention, he relied upon the decision in M.S.C.O. Pvt. Ltd v. Union of India, 1985 (19) E.L.T. 15 (S.C.) wherein the Supreme Court held as under: "But while construing a word which occurs in a statute or a statutory instrument in the absence of any definition in that very document it must be given the same meaning which it receives in ordinary parlance or understood in the sense in which people conversant with the subject matter of the statute or statutory instrument understands it. It is hazardous to interpret a word in accordance with its definition in another statute or statutory instruments and more so when such statute or statutory instrument is not dealing with any cognate subject" 3.3. The learned Advocate also placed reliance upon the following decisions- (a) Kaira Dist. Co-op Milk Products Union Ltd. v. U.O.I. - 1989 (41) E.L.T. 186 (Bom.)Bombay Chemical Pvt. Ltd v. C.C.E. - 1990 (49) E.L.T. 431 (Tribunal)Collector of Customs v. Reliance Industries Ltd. - 1995 (80) E.L.T. 831 (Tribunal) 3.4. The learned Advocate also mentioned that if the definitions are allowed to be imported in such a blind manner it would also mean that as and when the Motor Act and/or Rules in different States are amended the understanding and meaning of expression for the purpose of Excise Tariff must undergo change each time and in a given year some vehicle may be considered as autorickshaw but in the next year it may not be so considered and again in the next year it may be considered as autorickshaw, depending on the amendment in M.V. Act/Rules. The learned Counsel mentioned that the particular Notification was rescinded by Notification No. SO 451 (E), dated 19-6-1992 and now it was mentioned as "Three Wheeled Vehicles for. transport of passenger/goods", and no definition of autorickshaw was given therein; that this supports his view that the definition given in the Notification under Motor Vehicles Act was for specific purpose as per requirement of Sub-section (4) of Section 4 of the M.V. Act.
4. The Learned Counsel further mentioned that the appellants had made representation to the Central Government under letter dated 4-5-1994, with a request to have the issue examined so that the benefit of Notification No. 162/86-C.E. continued to be extended to their impugned product; that accordingly a circular No. 93/9/95-CX, dated 17-1-1995 was issued in which it was clarified that serial No. 5 of the Notification No. 162/86-C.E. "includes Heading 87.04 which is for motor vehicles for the transport of the goods. Autorickshaws, if used for carriage of goods are liable to be classified under Heading 87.04 and would be covered by Sl. No. 5." The circular further provided in Para 3 that "So long as a motor vehicle satisfies the description that it is three wheeled and is covered by any of the headings mentioned under Sl.
No. 5, it will be entitled to the benefit of notification No.162/86...." The learned Advocate contended that in view of Para 3 of the Circular, the Revenue cannot now take a different view as held by the Supreme Court in the following decisions: (iii) CCE, Bombay v. Jayant Dalai Co. Ltd. -1996 (88) E.L.T. 638 (S.C.)Mahavir Aluminium Ltd. v. CCE, Jaipur - 1999 (114) E.L.T. 371 (S.C.) 5. Shri C.S. Lodha, learned Counsel, mentioned that as per S.O. 436 (E), dated 12-6-1989, issued under Section 41(4) of the Act, Autorickshaw would not cover three wheeled motor vehicles meant for transporting the goods; that, however, the Circular issued by the Government, the exemption under Excise Notification No. 162/86-C.E. is available to (i) delivery-vans, (ii) pick-up vans and (iii) autotrailers, which are not covered by the definition of autorickshaw given in S.O. issued under M.V. Act; that the purpose of the said S.O.was quite different & was limited to putting the description of the motor vehicle in Registration Book. He also emphasised that different State Governments have framed different Rules; that the Rajasthan Motor Vehicles Rules, 1990 and The Andhra Pradesh Motor Vehicles Rules, 1990 recognise that autorickshaw of seating capacity of more than three passengers is registered as autorickshaw; that impugned vehicle is registered as autorickshaw in different cities and in support he drew our attention to Registration certificate at PP 521, 529, 524 etc. of the Paper Book; that in trade parlance their vehicle tempo three wheeler Auto Rickshaw is regarded as autorickshaw and the same is exported and internationally recognised as autorickshaw; that they had filed affidavits from dealers, drivers, passengers, garage owners, tempo owners' Association, Auto Rickshaw Association, and autorickshaw expert (pages 362 to 463 of the Paper Book); that it has been categorically stated in these affidavits that they regarded the vehicle, having seating capacity of seven persons also, as an autorickshaw and that trade understanding did not change when the number of persons were three or more than three. He finally submitted that as the Collector (Appeals) was acting in an adjudicating capacity, it was incumbent on him to have decided the case based on evidence on record instead on his own '* personal knowledge and which was also not disclosed to the Appellants. Reliance was placed on the decision in U.O.I. v. Park Products Pvt. Ltd. -1994 (74) E.L.T. 492 (S.C.) wherein the Apex Court set aside the judgment of Bombay High Court which was based on the High Court's own view and not on the basis of trade evidence on record. He also relied upon the decision in Hindustan Ferodo Ltd. v. CCE, Bombay 6. Countering the arguments, Shri R.K. Sharma, Learned S.D.R., submitted that Circular No. 93/9/95 CX, dated 17-1-1995 is not applicable to the impugned product; that the Circular is in respect of three Wheeled autorickshaws meant for transport of goods as is mentioned in the subject of the Circular; that the said clarification given in respect of autorickshaw for transport of goods cannot be in respect of representation dated 4-5-1994 submitted by the Appellants to the Central Board of Excise & Customs; that the impugned vehicle is not in any of the category of vehicles mentioned in the circular, i.e., delivery vans, pick up vans and auto trailers and accordingly the Circular is not applicable in respect o the product in question in the present matter. The learned S.D.R., further, mentioned that as neither the Central Excise Tariff nor the Notification No. 162/86 defines the expression 'autorickshaw', the meaning assigned to it in another Act can be borrowed for understanding the same. He relied upon the decision in B.P.L Pharmaceuticals Ltd. v. CCE, Vadodara, 1995 (77) E.L.T. 485 (S.C.) wherein the Supreme Court observed that the definition of the Words 'cosmetics' and 'drugs' cannot be ignored. He also relied upon the decision in the case of Panama Chemicals Works v. UOI, 1992 (62) E.L.T. 241 (MP), Kirloskar Oil Engines Ltd. v. UOI, 1995 (77) E.L.T.479 (S.C.) wherein the Apex Court held that the basis for initiation of proceedings being Indian Standards Booklet published by the Indian Standard Institute, it was not proper for the High Court or for the assessing authorities to ignore it. Finally in this regard, reliance was placed upon the decision in National Sales Corporation v. Collector of Customs, Madras, 1995 (78) E.L.T 653 (S.C.) wherein it was held that in absence of any material, I.S. specifications cannot be ignored. The learned S.D.R., contended that the Collector (Appeals) was, therefore, justified in relying upon the definition of autorickshaw as given in Motor Vehicles Act; that according to S.O. 436E, dated 12-6-199, autorickshaw was to be considered in a specific manner and it is required to be registered; that Rajasthan Motor Vehicle Rules, referred to by the learned Advocate, only provides specifications in respect of autorickshaw and tempo.
7. Referring to some registration certificate, furnished by the Appellants, the learned S.D.R. mentioned that the registration certificate No. 43843 (at page 520 of the Paper Book) referred to "Tempo"; that same is the position in respect of certificate of Registration at Page 523. He also drew our attention to the Affidavit of one Shri Santosh, a Tempo driver (Page 367 of the Paper Book) and submitted that Santosh regards himself as a tempo driver and not autorickshaw driver; that the similar language has been used in affidavits and as such these are not to be relied upon; that the same photograph is there with all affidavits. He relied upon the decision in CCE, Vadodra v. Kedia Agglomerated Marbles Ltd. - 1995 (77) E.L.T. 710 (T) wherein the Tribunal held that the affidavits have to be deemed to have been procured by the assessee to suit their purpose since inspite of the persons based in different cities, the operative parts of the certificate are identically worded. He also relied upon the decision in CCE v. Fuse Base, 1993 (67) E.L.T. 30. Referring to the invoice at page 662, learned S.D.R. said that description given is as 'Hanseat Tempo A.R.'; that it does not mean that people know as the impugned product as autorickshaw, that understanding of the buyers is also important; that the Maintenance Book published by the Appellants does not refer to the product as autorickshaw; that as per Maintenance Book, it could also be a 'pick up van' (Page 625 of Paper Book). Finally, the learned S.D.R. submitted that as the appellants are claiming an exemption, liberal interpretation is not permissible and merely by writing 'AR' after Tempo, the Vehicle will not become an autorickshaw so as to be eligible for the exemption. He relied upon the decision in Rajasthan Spinning & Wvg. Mills Ltd. v. CCE, Jaipur, 1995 (77) E.L.T. 474 (S.C.) wherein it was held that in the case of exemption from duty there is no question of any liberal construction to extend the term and the scope of the exemption notification. - Reliance was also placed on the decision in Faridabad Scan Centre v. D.G. Health Services, 1997 (95) E.L.T. 161 (S.C.), wherein it was held that Article 14 of the constitution cannot be attracted where wrong orders are issued in favour of others.
8. In reply, the learned Counsel submitted that Section 41 of the M.V.Act is a machinery provision for the purpose of registration; that the Central Government has chosen to issue notification under section 41(4) of the Act for a particular type of autorickshaw and not for all types of autorickshaw; that the list in the S.O. 436 (T), dated 12-8-1989 is not exhaustive one; that if a genus is used all its species are to be covered and reliance was placed on the decision in Indian Tool Manufactures v. Assistant Collector, 1994 (74) E.L.T. 12 (S.C.) in which it was held that if there is a general heading for the purpose of levy of excise duty, then every variety of goods falling under that general heading will have to be taxed under that heading and the fact that a particular variety is known by a particular name will not take it out of the general heading . He also mentioned that as per Indian Trade Classification, based on Harmonised Commodity Description and Coding System and issued by Ministry of Commerce, Autorickshaw may have I. C. Piston engine of a cylinder capacity exceeding 800 CC and as such their product having I.C. Engine of cylinder capacity of 454 CC cannot be taken out of the category of autorickshaw; that their product is registrable as autorickshaw in Maharashtra and in support of this, the Learned Advocate gave a copy of Circular dated 11-11-1999 issued by Transport Commissioner, Maharashtra State, Bombay. He also referred to the Affidavit of I. Jahoor Mohd, President of Dewas Tempo Rickshaw Association in which he has affirmed that the vehicle is recognised as an autorickshaw in trade, business and market. He also referred to the affidavit of Sh. Bhagwan Chand Kapoor, engaged in the work of registration of auto vehicles at the office of the R.T.O Agra. He has affirmed that autorickshaw - both 3 seaters and 7 seaters - irrespective of their shape, size and seating capacity are registered by the R.T.O under the same classification of LCV/LMV and the type of body in both cases is described as autorickshaw. The Learned Advocate finally mentioned that right from 1978 they have mentioned autorickshaw in invoices and their products are described tempo as the name of their Company is Bajaj Tempo Ltd. ; that right from the beginning the intention of the government was to provide exemption to three wheeled motor vehicles and he drew our attention to earlier Notifications such as Notification No. 95/60-CE dated 30-6-1960,47/74-C.E., dated 1-3-1974,107/78-C.E., dated 27-4-1978, etc.
9. We have considered the submissions of both the sides. Relevant Tariff headings of the Schedule to the Central Excise Tariff Act and serial Number of Notification No. 162/86-C.E., dated 1-3-1986 as amended reads as under:--------------------------------------------------------------------------8703.00 Motor Cars and other motor vehicles principally designed for the transport of persons (other than those of heading No. 87.02), including station wagons and racing cars.--------------------------------------------------------------------------8704.00 Motor vehicles for the Transport of goods.--------------------------------------------------------------------------87.06 Chasis fitted with engines, for the motor vehicles of head- ing Nos. 87.01 to 87.05--------------------------------------------------------------------------8706.30 For the vehicles of heading No. 87.03--------------------------------------------------------------------------8706.40 For the vehicles of heading No. 87.04.Notification No. 162/86-C.E., dated 1-3-1986 as amendedup to 1-3-1989--------------------------------------------------------------------------Sl. No. Heading No. Description of goods--------------------------------------------------------------------------4.
87.03, Three-wheeled 87.04 or Auto-rickshaws and 10. The Appellants have been describing the impugned product as "Tempo Three Wheeler Autorickshaw" in their classification lists since beginning and these classification lists had been approved both under old Tariff and present Tariff. The Collector (Appeals), after referring to different understanding of the word 'tempo' in Delhi, Gwalior and Bombay, has come to the conclusion that commercial parlance test of the product cannot be applied and accordingly the various affidavits produced by the Appellants had not if been considered by him and by going the definition of autorickshaw in SO 436(E) issued under Section 41(4) of the M.V. Acts, the Collector (Appeals) came to the conclusion that the impugned product, having seating capacity of six persons (excluding driver), cannot be called an 'Autorickshaw' and consequently not eligible for exemption under Notification No. 162/86. We find substantial force in the submissions of the Learned Counsel that the definition given in the SO 436(E), issued in exercise of the powers conferred by Sub-section (4) of Section 4 of the M.V. Act, cannot be intended to serve as an exhaustive description of autorickshaw connoting the understanding of the vehicle in commercial or common parlance if the definition is applied for interpreting the Excise Notification No. 162/86-CE, three wheeled auto-rickshaws used for the purpose of transporting goods would not be autorickshaw as according to SO 436(E), autorickshaw means a motor vehicle having three wheels constructed or adapted and used to carry not more than three passangers for hire or reward excluding the driver. Further the definition of autorickshaw given in the said SO is only "for the purpose of this Notification" and should not be extended to the term 'auto rickshaw' used in the notification issued under the Central Excise Law. We agree with the Learned Advocate for the Appellants that the list of vehicles given in SO 436(E) is not exhaustive as it does not cover the motor vehicle manufactured by the Appellant. It has been decided by the Courts and Tribunal in many cases that the definition in one Act/Statute cannot be made the basis for interpreting the same expression in another Act or statute. The Tribunal in Collector of Customs, Bombay v. Reliance Industries Ltd. -1995 (80) E.L.T. 831 observed that "Since we are concerned with the interpretation of the term 'substantial expansion' in the Project Import Regulations, we are not required to consider the definition of the same expression occurring in the Industries (Development & Regulation) Act, 1951. The definition of the expression "substantial expansion" in the explanation to Section 13(2) of the IDR Act cannot be considered for determining the meaning of expression in the context of Project Imports Regulations as that explanation relates only to that Section, as is evident from the phrase "for the purpose of this Sections" occurring at the commencement of that explanation". Similarly Tribunal had in the case of Bombay Chemicals, Supra, that Insecticides Act, 1968 or the Schedule thereto would not govern the meaning of the expression in exemption notification. The Tribunal placed the reliance on the Supreme Court's judgment in MS Co. case, Supra wherein it was observed that it is hazardous to interpret a word in accordance with its definition in another statute. The Apex Court took the same view in R.C. Jain's case when it observed as under: "...it is not a sound rule of interpretation to seek the meaning of words used in an Act, in the definition, clause of other statute.
The definition of an expression in one Act must not be imported into another. It would be a new terror in the construction of Acts of parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purpose of that Act alone." 11. The Supreme Court in R.C. Jain's case thus refrained from borrowing upon the definition of "Local Fund" and "Local Authority" from other enactments for the purpose of interpreting the provisions of Payment of Bonus Act, 1965. The Learned SDR has also referred to some decisions to rebut the contention of the appellants that definition in other Act should not be imported to interpret the expression. But we find that in the decision in Kirloskar Engines Oil and National Sales Corporation, reference was made to I.S. specifications which stand on completely different footing. In B.P.L. Pharmaceuticals Ltd., no doubt the Supreme Court has referred to the definition of drugs and costmetics in Drugs and Cosmetics Act for the purpose of considering the character of the product 'selsw' (sic) involved therein, the conclusion was arrived "having regard to the preparation, label, literature, character, common and commercial parlance understanding and the earlier decision of the Central Board of Excise Customs." 12. It is well settled that the words used in a Taxing Statute have to be understood in the common parlance or commercial parlance. In M.S.Co. case, Supra, the Apex Court held that "when the word to be construed is used in a taxing statute or notification issued thereunder it should be understood in its commercial sense". The Appellants have submitted affidavits of dealers, drivers, passengers, garage owners, officers of Associations, RTO Agent and automobile expert to prove that in common parlance and commercial parlance, the impugned product is considered as an autorickshaw only. The points raised by Learned SDR such as that the same photo has been used with all affidavits or the wordings of the affidavits are similar, do not materially affect the fact that the vehicle in question is regarded as autorickshaw. Further we find that different photographs have been placed and in some cases even Registration Number has been shown. The Revenue has also not adduced any evidence to show that the product in question is not considered as autorickshaw in the common/commercial parlance. Finally we find that Circular No. 93/9/95-CX, dated 17-1-1995, issued by the Central Board of Excise & Customs, clearly mentions that "So long as a motor vehicle satisfies the description that it is three wheeled and is covered by any of the headings mentioned under Sl. No. 5, it will be entitled to the benefit of notification No. 162/86 as amended by Notification No. 49/94, dated 1-3-1994." It is not in dispute that the product is a three wheeled motor vehicle classifiable under Heading 87.03 and its chasis under sub-heading 8706.30 and as such it is covered by one of the headings mentioned under the relevant serial number of the Notification. It is significant to note that the circular was issued by the Board when the Notification provided exemption to autorickshaw and chasis therefor.
13. In view of the above discussion, we are of the view that the product in question cannot be denied the benefit of exemption under Notification No. 162/86-CE merely on the ground that the product does not fit into the definition of 'autorickshaw' given in SO 436 (E) issued for the specific purpose of Sub-section (4) of Section 41 of the Motor Vehicles Act. Having regard to the common/commercial parlance understanding the impugned product is an autorickshaw eligible for the exemption under Notification No. 162/86-C.E.14. Accordingly, the impugned Order is set aside and the appeal is allowed.