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TMI Blog2013 (4) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... der 8701 attracts nil duty without any condition. The details mentioned in column (3) is not in the nature of condition but in the nature of how it is to be consumed. The exemption is available to all goods captively consumed. Hence the exemption contained in the Notification being absolute/ unconditional - No refund or duty drawback - decided against the assessee. - F. No. 371/57/DBK/2010-RA - 79/2012-Cus - Dated:- 13-3-2012 - Shri D.P. Singh, J. REPRESENTED BY : S/Shri Ravi L. Ramanan, General Manager and Patil Niketan, DGM, for the Assessee. None, for the Department. [Order]. This revision application is filed by M/s. Mahindra Mahindra Ltd. (Tractor Division), FES, Mumbai against the Order-in-Appeal No. SB (61) 61/MV/2010, dated 9-6-2010 passed by Commissioner of Central Excise (Appeals), Mumbai-I with respect to Order-in-Original in a letter format bearing F.No. VT/CH.870188708/M/07/DBK/M-V, dated 20-7-2009 passed by the Additional Commissioner (Technical), Central Excise, Mumbai-V. 2. Brief facts of the case are that M/s. Mahindra Mahindra Ltd. (Tractor Division), FES, Akurli Road, Kandivali (East), Mumbai are manufacturers and exporters of tract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her inputs used exclusively in the manufacture of tractors, has been paid. It is also an undisputed fact that credit was not taken on such duty paid on the aforesaid goods, which are used in the manufacture of tractors cleared for export under Bond. It is also an undisputed fact that the applicants had not claimed any benefit under Rule 18 of the Central Excise Rules, 2002, in respect of the duty paid on the aggregates and other inputs used in the manufacture of tractors cleared for export. In view of the above, while determining the rate of drawback, the duties paid on IC engines, transmission assembly and sheet metal components and other inputs which are exclusively used in the manufacture of tractors cleared for export under drawback scheme should be taken into account while fixing the brand rate of drawback. The Commissioner of Central Excise (Appeals) cannot hold that the duty on the aggregates manufactured and captively used is not payable. 4.3 The Commissioner (Appeals) in the present impugned order has taken a view contrary to his own decision in the earlier Order-in-Appeal dated 14-7-2009. 4.4 The applicants are entitled to pay duty on IC engines, transmission assembly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option to avail or not to avail the exemption notification. In the case of fixing of brand rate, determination of brand rate is based on the fact of use of material or components or inputs or input services which are used in the production or manufacture of goods and duties or taxes paid on such material or components or input services would be taken into account. Therefore, so long as the duty is paid on the material or components in the manufacture of goods cleared for export, such duties should be taken into account for the purpose of determining the amount or rate of duty drawback. The impugned order which proceeded on the basis that even if the duty is paid on the aggregates and accepted by the department, the same will not be taken into account for fixing drawback rate is unsustainable in law. 4.9 Rule 6 and Rule 7 of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, under which the brand rate of drawback is determined, specifically mentions that for the determination of the amount or rate of drawback there of all the relevant facts including the proportion in which the material or components are used in the production or manufacture of goods and the duti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s attended by Shri Ravi L. Ramanan, General Manager and Shri Patil Niketan, DGM on behalf of the applicant, who reiterated the grounds of revision application. Nobody attended hearing on behalf of the respondent department. 6. Government has carefully gone through the relevant case records, oral/written submission and perused the impugned order-in-original and order-in-appeal. 7. Government observes that applicant manufactures, tractors and parts of tractors viz. IC engines, transmission assembly and sheet metal components referred together as aggregates, classifiable under Chapters 84 87 Central Excise Tariff which are exempted from payment of Central Excise duty vide Notification No. 6/2002-Central Excise, dated 1-3-2002 as amended by Notification No. 23/2004-C.E., dated 9-7-2004. However applicants choose to pay duty on part of tractors (aggregates). They subsequently exported tractors and filed application of fixation of brand rate of drawback in r/o duty paid on such aggregates. The original authority rejected their drawback brand rate fixation application on the grounds that aggregates being part of tractors are exempted from payment of duty vide Notification No. 6/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parts used within the factory of production for manufacture of goods falling under 8701 attracts nil duty without any condition. The details mentioned in column (3) is not in the nature of condition but in the nature of how it is to be consumed. 9. Government observes that lower authorities have rejected application for fixation of brand rate of drawback on duty paid on aggregates, parts of tractors, on the ground that there was no duty payable on aggregates in terms of Sr. Nos. 295 and 296 of the Notification No. 23/2004-C.E., dated 9-7-2004 [which amended Notification No. 6/2002-C.E.] as the said exemption is absolute in nature. From perusal of Sr. No. 296 of the said Notification No. 6/2002-C.E., as amended it is evident that against Column No. (5) no condition has been specified. The applicant has submitted that the duty exemption available against Sr. No. 296 is conditional because there is the condition that they are to be captivity consumed in the manufacture of tractor. In this regard Government, observes that such condition is not provided under Column (5) of the said Notification. The exemption is available to all goods captively consumed. Hence the exemption contai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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