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TMI Blog2013 (11) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - F.No. 198/658/2011-RA - Order No. 136/2013-CX - Dated:- 18-2-2013 - Shri D.P. Singh, J. Shri W.V. Jacob, Deputy Commissioner, for the Assessee. Shri Hari Radhakrishnan, Advocate, for the Department. ORDER This revision application is filed by the applicant Commissioner of Central Excise, Chennai-I against the order-in-appeal No. 16/2011/M-I, dated 25-8-2011 passed by the Commissioner (Appeals), Central Excise, Chennai with respect to order-in-original No. 492(R)/2009, dated 20-7-2009 passed by Maritime Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hedule . The Mosquito Repellant Machine does not fall in the list of description of the products mentioned in Third Schedule under CETH 8516 and hence, it cannot be considered as a product specified under Third Schedule. 4.3 Section 2(f)(iii) also states that activity of altering or declaring the RSP in respect of products under Third Schedule would amount to manufacture. This explanation will hold good for products falling under Third Schedule and that needs to be valued under Section 4A of Central Excise Act, 1944. The Mosquito Repellant Machine falling under CETH 8516, are not valued under Section 4A but under Section 4 of the said Act as the said goods are exported. 4.4 Therefore, Mosquito Repellant Machine has not undergone any process before export. Since no manufacturing activity had taken place, the question of duty payment and claiming the same as rebate does not arise. Thus 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-C.E. (N.T.), dated 6-9-2004. 5. A show cause notice was issued to the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted facts and the legal position, the Revision Application has to be rejected in limine. Accordingly, the question of annulling the Order-in-Appeal as proposed in the SCN does not at all arise. The Order-in-Appeal passed by the Commissioner (Appeals) is legal and proper and the claim made by the applicant to the contrary is factually incorrect and legally unsustainable. 5.5 The essential requirement for the purpose of granting rebate on the goods exported are (a) duty should have been paid and (b) the goods should have been exported. The respondent submits that fact of payment of duty equivalent to rebate claimed on the exported goods is not denied by the applicant. Export of goods out of the country is also not denied. It is not the case of the applicant that the duty was not paid on the combined value of the mosquito repellant machine and mosquito repellant liquid which were packed and exported as a combi-pack. It is submitted that when the duty has been paid on the combined value of the goods contained in the combipack, the respondent is rightly eligible to claim rebate of the amount of duty paid on the goods exported. 5.6 The C.B.E. C. in the circular 510/6/2000-Cx., date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods were not questioned and the same were exported as a combi-pack the respondents are eligible for rebate since in terms of Section 2(f)(iii) of Central Excise Act, 1944, such activity of packing amounts to manufacture. Now the applicant department has filed this Revision Application on the grounds stated at para 4 above. 9. The department has contended that the invoice under which the products were exported clearly shows that the mosquito repellant machines are classified under 8516 79 20 and mosquito repellant liquid is classified under 3808.109, which are assessed separately and not as combipack ; that said machine does not fall in the list of goods specified in the Third Schedule under CETH 8516 and hence the provision of Section 2(f)(iii) does not apply, that said machine has not undergone any processing before export so question of payment of duty and claiming rebate does not arise. 9.1 Government observes that though both the mosquito repellant liquid and repellant machine were classified under different Central Excise Tariff heading in export invoices, yet they were reportedly exported in combi-pack as recorded in impugned order-in-original paras 5 and 10, which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded the classification issue of combipack of mosquito repellant liquid and mosquito repellant machine. The relevant para(s) of Hon ble Tribunal s judgment is reproduced as under : 12. In the instant case, admittedly, the appellant had cleared the combipack comprising of Allout refill bottle containing insecticides falling under Chapter heading 3808.10 and the electro thermic apparatus used for domestic purpose falling under Chapter 85 of the Schedule to the Central Excise Tariff Act, 1985. Both the refill bottle of insecticides and the electro thermic apparatus are interdependent on each other for functional use. Refill bottle without electro thermic apparatus is of no use as mosquito repellent and electro thermic is of no use without the bottle containing insecticides. Both the articles fall with different classification heading under different chapter headings of Central Excise Tariff Act, 1985. Thus that being the case, the question arises, what would be the right classification for combipack. 13. 14. 15. Now the question arises, which of the two components, i.e. electro thermic apparatus or refill bottle of pesticides gives essential character to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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