9911796707
TMI Blog2013 (11) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... acked along with their manufactured excisable goods viz. mosquito repellant liquid/refill. The original authority observed that the mosquito repellant machine had not undergone any manufacturing activity, a show cause notice was issued proposing to reject the claim for in respect of mosquito repellant machine. Subsequently, the lower Adjudicating Authority passed the impugned order-in-original allowing rebate only for Mosquito Repellant Liquid portion which had been manufactured and rejecting the claim of Rs. 5,84,704/- on the Mosquito Repellant Machine portion which had been imported. 3. Being aggrieved by the order-in-original, the respondents filed appeal before Commissioner (Appeals) who set aside the impugned order of the original authority and allowed the appeal. 4. Being aggrieved by the impugned order-in-appeal, the applicant department has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The invoice under which the products were exported clearly shows that the Mosquito Repellant Machines classified under 8516 79 20 and Mosquito Repellant liquid is classified under 38081 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that the goods were repacked in combi-packs and therefore amounted to manufacture was not based on facts. The respondent invites kind reference of the Revision Authority to paragraph 5 of the Order-in-Original wherein it is stated that : "in the subject claims on scrutiny of the shipping bills and export invoices, it is observed that the goods viz. mosquito repellant machine imported under Advance licence were packed along with their manufactured excisable goods viz mosquito repellant liquid/refill and the said goods were exported as combi-packs on payment of duty so as to claim the said duty payment under rebate. Apparently, the applicant did not go through the records. It is submitted that the goods were indeed exported in combi-packs." 5.2 The second ground taken by the applicant is also a ground taken without properly studying the Third Schedule relating to goods notified for MRP based assessment. It is stated by the applicant that packing or repacking could not be considered as manufacturing activity since Section 2(f)(iii) which deems such activity as manufacture is not applicable to goods which are not appearing in the Third Schedule. It is submitted that g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdictional Assistant/Deputy Commissioner. The latter shall scrutinize the correctness of assessment and take necessary action, wherever necessary. In fact, the triplicate copy of AR-4 is meant for this purpose, which are to be scrutinized by the Range officers and then sent to rebate sanctioning authority with suitable endorsement. Since there is no need for reducing rebate, the question of taking of re-credit in RG-23A Part-II or RG 23C Part-II does not arise." Case laws relied upon by the respondents : * 1993 (67) E.L.T. 759 (G.O.I.) * 2011 (269) E.L.T. 122 (G.O.I.) * 2009 (236) E.L.T. 349 (Tri.- Del.) * 2011 (271) E.L.T. 148 (G.O.I.) * 2011 (268) E.L.T. 111 (G.O.I.). 6. Personal hearing was scheduled in this case 14-12-2012. Shri W.V. Jacob, Deputy Commissioner, Chennai-I, appeared on behalf of the applicant who reiterated the grounds of revision application. He further added that the subjected goods had been assessed at the time of export under Section 4 of the Central Excise Act, 1944 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquid/refill. The said goods were exported as combi-packs on payment of duty so as to claim said duty payment under rebate." "Para 10 - In the instant case the exporter had imported 'Mosquito Repellant Machine' under Advance Licence Scheme without payment of duty. The same had been exported along with 'Mosquito Repellant Liquid' on payment of duty. Even though the rebate is claimed on export, the exporter is eligible for rebate only for 'Mosquito Repellant Liquid' portion, which has been manufactured by the exporter." The original authority has not disputed the export of said goods in a combi-pack but at the same time did not consider the machine as having undergone any processing. So, it is fact on record that adjudicating authority has admitted the export in combi-packs form of the said goods. There is no dispute about payment of duty and export of goods. 9.2 Government finds that the department has also contended that Section 2(f)(iii) applies for goods which are specified under the Third Schedule and the mosquito repellant machine do not figure in the list of descriptions of the products mentioned in Third Schedule. The respondent contended that their goods fall under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd refill bottle. Whether the buyer would be prompted to buy combination pack with a view to purchase the electro thermic apparatus or with a view to buy refill bottle of pesticides? In our considered view, a prospective buyer would purchase such combination pack for using it as mosquito repellent, which purpose is achieved by vaporizing the liquid pesticide by subjecting it to heat with the aid of electro thermic apparatus. This imply that electro thermic apparatus is merely a delivery machine but the real mosquito repellent is liquid pesticides contained in refill bottle. Thus, we find that the liquid pesticides bottle in the combination pack gives essential character of mosquito repellent to the combination pack. Thus, in our view, the right classification for the combipack would be under Chapter heading 3808.10 which relates to insecticides etc. and not under Chapter heading 8516 relating to electric heating apparatus." From, perusal of above judgment, it is clear that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
