JUDGMENT:

S.B. SINHA, J :

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."

3. 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).

4. 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.

5. 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.

6. 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.

7. By an order dated 29.11.2004, the assessing authority confirmed the demand of Rs. 4,42,823/-. A penalty for an amount of Rs. 5000/- was also imposed at the prescribed rate. It was furthermore directed that on the said amount of duty interest shall be payable.

8. An appeal was preferred thereagainst by the respondent contending that the job cards issued by them indicate that the orders were for fabrication of more than 16 seats in the cab and as such thereby the 'goods' manufactured by them should be classified under Sub-Heading 8702.90 wherefor no NCCD was payable. The said contention was rejected by the appellate authority in terms of its judgment dated 18.04.2005 holding:

"…The evidences of job cards produced at the time of personal hearing cannot be relied upon by them as the same are new evidences in the form of new plea which were not produced before the Lower Authority that cannot be entertained at this stage as held by the Hon'ble Supreme Court in the case of Naharwar Engg. Works Vs. UOI reported in 2002 (143) ELT 34(SC). Further the Hon'ble Apex Court in the case of Krishna Steel Industries Vs. CCE Patna reported in 2004 (172) ELT 305 Authority or Tribunal, the same cannot be allowed to be relied upon". Applying the ratio of the above decision, I, therefore, reject this fresh plea/ evidences put forth for the first time by the appellants.

10.3 Even presuming without admitting that these job cards are fresh evidences, these cannot be relied upon in the matter of classification of said vehicles in the CETA 1985 inasmuch as the heading No. 87.02 and 87.03 have been aligned on the basis of Motor Vehicles Act, 1988 based on passenger carrying designed for the transport of 12 PLUS 1 persons" by the State Transport Authorities as discussed