2013 (11) TMI 379 - CGOVT - Central Excise

Rebate claim Classification of goods - Combipack - Assessee exported mosquito repellant machine & liquid - Claim was rejected on the ground that the mosquito repellant machine had not undergone any manufacturing activity Revenue was of the view that the Commissioner (Appeals) has erred in allowing the rebate on that portion of duty paid on export of mosquito repellent machine in terms of Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004 - Held that - Government finds that the Sr. No. 86, apart from covering other specific articles, also covers generic articles falling under category of all electro-thermic appliances of a kind used for domestic purpose. Relying upon Karamchand Appliances Pvt. Ltd. v. Commissioner of Central Excise, Chandigarh 2013 (4) TMI 79 - CESTAT, NEW DELHI - The mosquito repellant machines were treated as electro thermic apparatus by the tribunal - The harmonious reading of tribunal s judgment with entry of Sr. No. 86, of Appendix-V of Third Schedule, it can be seen that mosquito repellant machine being electro thermic apparatus, will fall under category of product listed under Sr. No. 86 of Appendix-V of Third Schedule Thus there was force in the contention of the respondent that their goods fall under Sr. No. 86 of Third Schedule - Tribunal held that the goods i.e. combipack are more appropriately classifiable under Chapter Heading 3808.10 which relates to insecticides, etc., and not under Chapter Heading 8516 relating to electric heating apparatus - the combo pack gets specific characteristic as insecticide under 3808 10 - The goods falling under 3808 10 also finds entry as insecticide under Third Schedule no infirmity in the order Decided against Revenue.

Summary

Issues Involved:
1. Eligibility for rebate on duty paid for exported goods.
2. Classification of mosquito repellant machines and liquids under Central Excise Tariff.
3. Interpretation of "manufacture" under Section 2(f)(iii) of the Central Excise Act, 1944.
4. Applicability of the Third Schedule for MRP-based assessment.

Detailed Analysis:

1. Eligibility for Rebate on Duty Paid for Exported Goods:
The respondents, M/s. Godrej Sara Lee Ltd., filed rebate claims for Rs. 10,63,109/- for duty paid on exported mosquito repellant machines and liquids. The original authority allowed the rebate for the mosquito repellant liquid but rejected the claim for the mosquito repellant machines, stating that they had not undergone any manufacturing activity post-import. The Commissioner (Appeals) overturned this decision, allowing the rebate for both items, which led the department to file a revision application.

2. Classification of Mosquito Repellant Machines and Liquids under Central Excise Tariff:
The department argued that mosquito repellant machines (classified under 8516 79 20) and mosquito repellant liquid (classified under 3808.109) were assessed separately and not as a combi-pack. They contended that the machines did not fall under the Third Schedule and thus could not be considered for rebate under Section 2(f)(iii). However, the respondents argued that the goods were indeed exported as combi-packs, which should be eligible for rebate.

3. Interpretation of "Manufacture" under Section 2(f)(iii) of the Central Excise Act, 1944:
The department claimed that the mosquito repellant machines did not undergo any manufacturing process and thus did not qualify for rebate. The respondents countered that packing the machines with the liquid constituted manufacturing under Section 2(f)(iii), which includes packing or repacking of goods. The Commissioner (Appeals) agreed with the respondents, stating that packing the goods as combi-packs amounted to manufacturing.

4. Applicability of the Third Schedule for MRP-Based Assessment:
The department argued that mosquito repellant machines did not fall under the Third Schedule and thus Section 2(f)(iii) did not apply. The respondents pointed out that goods under tariff heading 8516 are covered under the Third Schedule. They cited relevant case laws and notifications, including the C.B.E. & C. circular, to support their claim that packing or repacking amounts to manufacturing and thus qualifies for rebate.

Judgment:
The adjudicating authority initially allowed the rebate for the mosquito repellant liquid but rejected it for the machines. The Commissioner (Appeals) reversed this decision, allowing the rebate for both items, considering the export as combi-packs. The department's revision application was based on the argument that the mosquito repellant machines did not undergo manufacturing and did not fall under the Third Schedule. However, the Government found that the goods were indeed exported as combi-packs and that the mosquito repellant machines, classified under 8516, fell under the Third Schedule as "electro-thermic appliances of a kind used for domestic purposes."

The Government upheld the Commissioner (Appeals)'s decision, stating that the goods were appropriately classified, and the packing of the machines with the liquid constituted manufacturing under Section 2(f)(iii). The revision application was rejected as devoid of merit.