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2023 (8) TMI 804 - HC - CustomsDuty drawback - Classification of goods exported - sanitary ware - classifiable under Chapter heading 8481 of the CTA or not - rejection of claim of duty drawback under a different category - HELD THAT:- A careful perusal of the clause in Rule 1(d) of Chapter 84 manifests that there is specific exclusion of the category of goods dealt with under original heading of 7321 or 7321 or similar articles of other base material in chapter 74 to 76 or 78 to 81. Reverting back to the instant matter, the consignment was duly inspected vide panchanama dated 12 September 2011, and the same was verified to be ‘sanitary wares’. The stand of the respondent that the details of the item brochures/catalogues, which were submitted by the petitioner at the earliest point of time, belies common sense and logic. There is no gainsaying that ‘sanitary wares’ or ‘fixtures’ are those equipments, which in isolation or combined with other objects or appliances may be used to achieve a high standard of cleanliness from germs and bacteria - The use of brass in sanitary wares for taps or knobs is by all means a well known phenomena in context of the business of kitchen and bathroom wares since such wares invariably come in contact with moisture or water, which has a high erosive value and brass is thus used in order to prevent rusting of the wares or fixtures for longer lasting durability and use. There is no denial of the fact that the consignment of goods that was exported was containing sanitary wares albeit few parts made of brass elements but nonetheless not in any manner pertaining to use or application in “nuclear reactors, boilers, machineries and appliances”. The respondent has clearly overlooked even the brochures pertaining to the items that amply demonstrates the essential features of the sanitary wares and use of brass so as to make the articles more elegant and durable for the use of end consumers. It is apparent that the respondent in a mindless manner has failed to even consider the common parlance and manner in which the articles are known, bought and sold in the marketing world. In the cited case of O.K. Play (India) Pvt. Ltd. [2005 (2) TMI 114 - SUPREME COURT], the assessee was engaged in the manufacture of toys and he cleared certain items viz., Activity Desks and Chairs, Fun Fliers, Play Table, Play Pool, Rockers, Slides and Swings without payment of duty claiming exemption from payment of excise duty under chapter Heading 95.03. The claim of the petitioner that the duty drawback should be classified vide heading No. 741903A (‘A’ signifies a matter where CENVAT has not been claimed), as claimed in the prayer clause, is also misconceived since a bare perusal of the aforesaid tabulated tariff details would show that item No. 741902 in Chapter 74 pertains to “artware/handicraft” - Ultimately, it is the end use of the product that is decisive and in the instant case, the items are meant for use in the kitchen, toilets or bathroom and although it may portray some art work in its designs, it is not ‘artwork’ or ‘handicraft’ item. Therefore, duty drawback could only be claimed in category of goods falling Chapter 74 vide item No. 741802. The impugned order dated 08 July 2022 passed by the Revisionary Authority thereby approving the order-in-original No. 101/2013 dated 10 April 2013 by the by the ACC(E) cannot be sustained in law - the respondent shall consider the claim for duty drawback of the ‘subject goods’ in terms of classification vide item No. 741802 as per tariff applicable for the year 2011-12. The instant Writ Petition is allowed.
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