By TIOL News Service

MUMBAI, JULY 03, 2016: THIS is a Revenue appeal filed in the year 2005.

The facts are that the respondent manufactures go-kart and parts thereof. It is alleged by the Revenue that the "go-karts" manufactured by the respondent are classifiable under CSH8703.90 and chargeable to CE duty.

It is the contention of the assessee that the goods are correctly classifiable under CSH 95.08 as Fairground amusements.

The adjudicating authority upheld the allegations leveled in the SCN but the Commissioner (A) set aside the order and, therefore, Revenue is in appeal.

Both sides made elaborate submissions. Revenue relied upon the following case laws in support of its stand viz. Leisureland Pvt. Ltd. v. CCE - 1994 (71) ELT 489 (Tri) & 1996 (84) ELT A49 (SC) & Nishiland Park Ltd - 2002 (142) ELT 174 which the respondent sought to distinguish.

The Bench observed that the issue is squarely settled by the judgement of Leisureland Pvt. Ltd. (supra) wherein majority order records that product in question are classifiable under chapter heading number 8703.

After extracting paragraph 14 of Majority decision of Tribunal in Leisureland Pvt. Ltd. & paragraphs 8 to 15 of the decision in Nishiland Park Ltd., the Bench also noted that the Civil Appeal filed by the assessee Leisureland Private Limited had been dismissed by the Apex Court meaning that the classification of "Go-Kart" is to be under chapter heading number 8703.

Holding that the order of the Commissioner (A) is not sustainable in view of the authoritative judicial pronouncements on the issue, the same was set aside and the order of the adjudicating authority was restored.

However, noting that the issue is of interpretation and classification of the products, penalties imposed on the assesseeu/r 173Q of erstwhile CER, 1944, penalties imposed u/s 11AC of CEA, 1944 as also the penalty imposed on Director of the assessee company were set aside.

(See 2016-TIOL-1603-CESTAT-MUM)