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TMI Blog2010 (5) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... k rate schedule, itself it is clear that the drawback rate prescribed is only of customs duty and there is no excise duty component in the “all industry rate” of Drawback fixed for Aluminium pistons/piston assembly of heading 84.63 – Appeal allowed - E/1364 OF 2008 (SM) - 792/2010 SM(BR) - Dated:- 31-5-2010 - RAKESH KUMAR, JJ. ORDER 1. The appellant are manufacturers of aluminium pistons and piston assembly falling under heading 84.63 of the tariff. They have clearances for home consumption on payment of duty as well as for export without payment of duty under rule 19 of the Central Excise Rules. During the period from July 2001 to December 2001, they made some clearances without payment of duty against CT-1 produced by merchant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter considering the decision of the Tribunal in the appellant s own case in CCE v. Meghdoot Pistons (P.) Ltd. 2006 (201) ELT 398 (Trib. - Delhi), wherein the Tribunal had allowed the cash refund of the accumulated Cenvat credit to the appellant on the ground that though the goods had been exported under drawback claim, the drawback was of the customs duty only and not of customs as well as Central Excise Duty. 1.1 The matter was decided de novo by the Commissioner (Appeals) vide order-in-appeal No. 156-CE/APPL/KNP/2008, dated 31-3-2008 by which the Commissioner (Appeals) again upheld the Deputy Commissioner s order on the ground that nowhere it has been held by the Tribunal or the Board s Circular referred therein, that amanufacturer can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted, that based on this circular, in the appellant s case for a different period, the Tribunal in its order Nos. 770-772/06-SM, dated 4-4-2006 in Meghdoot Pistons (P.) Ltd. s case (supra) has held that the appellant would be eligible for the cash refund of accumulated Cenvat credit under rule 5, that the Commissioner (Appeals) has ignored the fact that the drawback claims were of customs duty and that in view of this, the impugned order is not correct. 2.2 Shri S.K. Bhaskar, the learned DR defended the impugned order by reiterating the Commissioner (Appeals) s finding and emphasized that the Board s Circular is not applicable to this case, that from the language of rule 5 of the Cenvat Credit Rules, it is clear that once the drawback is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Central Excise Duty Drawback Rule, 1995 or claims rebate of duty under the Central Excise Rules, 2001 in respect of such duty. In this case, no rebate has been claimed. The dispute is only as to whether the Central Excise Duty drawback has been claimed. According to the Commissioner (Appeals), there is nothing on record to show that the merchant exporter had availed only the customs duty drawback and the appellants have also not produced any document to prove the same. However, from the Customs Central Excise Duty Drawback rate schedule for 2001-2002, it is seen that during the period of dispute, the rate of drawback prescribed for aluminium piston/piston assembly of heading 84.63 was Rs. 4 per kg. and in the column 4 and 5 of the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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