TMI Blog2013 (7) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... shall mutatis mutandis apply for classifying the export goods listed in the said Schedule – revision application decided against assessee - 371/41/DBK/2011-RA - 247/2012-Cus - Dated:- 13-6-2012 - Shri D.P. Singh, J. Shri Ganesh Bapu TR, Advocate, for the Assessee. ORDER This revision application is filed by M/s. ABB Ltd., ABB House, Dr. SB Path Street, Ballard Estate, Mumbai against the order-in-appeal No. 47(DBK) 2011 (JNCH) Exp-16, dated 31-1-2011 passed by Commissioner of Customs (Appeals) JNCH Nhava Sheva, Mumbai-II, Distt. Raigad with respect to order-in-original No. 56/2009, dated 31-7-2009 passed by Assistant Commissioner of Customs, Drawback, JNCH, Sheva. 2. Brief facts of the case are that applicant exported High Voltage switchgear (Circuit breaker SF6) under 10 Shipping Bills between January, 2008 to December 2008 classifying the export goods under Heading 85.37 under claim for drawback. The Assistant Commissioner vide impugned order dated 31-7-2009 held that the export goods are not eligible for drawback under SS No. 85.37 @ 4% and 3.6% but under SS No. 85.35 @ 3.2% and 2.7%. 3. Aggrieved by the impugned order, the applicant filed this appeal on the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the assessment made in the bill of entry. 4.2 It is submitted that the ratio laid down in the above decision will apply in the present case. The classification adopted in the shipping bills under Heading 85.37 has not been challenged by the department by way of filing an appeal before the Appellate Authority. Thus, the assessment made in the shipping bills, classifying the export goods under 85.37 has become final. Further, such shipping bills were made under claim for drawback. Hence, at this belated stage, the department could not have taken a different view in respect of the classification already adopted without challenging the same. 4.3 The export goods in question were manufactured by the applicants in their factory at Maneja, Vadodara, falling within the jurisdiction of Deputy Commissioner (Central Excise and Service Tax) LTU, Bangalore Central Excise, Bangalore - 560005. The Central Excise Department has classified the export goods indicated in ARE-1 is, under which the goods were cleared for export, under Heading 85.37. 4.4 As observed in paras 5 and 6 of the order-in-original dated 31-7-2009, the Schedule to the All Industry Drawback Rates notified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also contain certain SF 6 circuit breaker and therefore, comes to the conclusion that the goods exported are classifiable under Heading 85.35. 4.10 It is submitted that just because the export goods contains a SF6 circuit breaker does not mean they are classifiable under Heading 85.35. Electrical apparatus for switching or for making connections to or in electrical circuits with boards, panels and cabinets and including numerical control apparatus constitute the goods in question and it consists of various items falling under Headings 85.35 and 85.36, housed in a console and mounted on a steel base. That is the reason why they are classified as switchgears. The term switchgear, used in association with the electric power system, or grid, refers to the combination of electrical disconnects, fuses and/or circuit breakers used to isolate electrical equipment. Switchgear is used both to de-energize equipment to allow work to be done and to clear faults downstream. 4.11 The Tribunal in Crompton Greaves Ltd. v. CCE - 1996 (87) E.L.T. 414 (Tri.) affirmed by Supreme Court in 2002 (142) E.L.T. A182 (S.C.) has held that circuit breaker of the type similar to the goods exported are clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge suppressors, plugs, junction boxes), for voltage exceeding 1000 volts. 85.37 8537.00 Boars, Panels (including numerical control panels), consoles, desks, cabinets and other bases equipped with two or more apparatus of Heading No. 85.35 or Heading No. 85.36. Heading 85.35 refers to electrical apparatus for switching or protecting electrical circuits. Heading 85.37 refers to boards, panels, consoles, desks, cabinets and other bases equipped with two or more apparatus of heading No. 85.35 or heading 85.36 for electrical control and the distribution of electricity. 9. As per catalogue of the item, SF6 circuit breakers use Sulphur Hexafluoride (SF6) gas. SF6 Circuit breaker EDI SK with Auto Puffer is described as follows :- EDI SK is a live tank SF6 Auto Puffer indoor circuit breaker in the voltage range of 36-84 KV with rated breaking current up to 31.5 KA. The 3-pole circuit breaker is operated by springs for opening and closing. The springs are situated in the operating mechanism. The circuit breaker together with the operating mechanism and the truck carriage forms a complete withdrawal unit for indoor installation. Operating mechanism type ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board under Section 37B, order-in-appeal No. COMMR.(A)/28/VDR/98 dated 31-12-1998 passed by Commissioner (Appeals), Central Excise Customs, Vadodara in their case and a number of case laws to support their contention that the circuit breaker have to be classified under Heading 85.37 of Drawback Schedule. In this regard, the relevant text of the Heading No. 85.35 of Drawback Schedule is as under :- 85.35 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses, lighting arresters, voltage limiters, surge suppressors plugs and other connectors, junction boxes) for a voltage exceeding 1000 volts. 8535.10 - Fuses - Automatic circuit breakers 8535.21 - For a voltage of less than 72.5 kv - SF6 Circuit breaker 853521 11 ----- For a voltage of 11 kv 8535 21 21 ----- For a voltage of 33 kv 8535 2113 ----- For a voltage of 66 kv 853521 19 ----- Other ----- vacum circuit breakers : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawback claim the classification of goods is not examined from drawback angle while finalizing assessment of the shipping bill. The Assistant Commissioner of Customs (Drawback) while examining the drawback claim has to sanction drawback claim in accordance with the provisions of Section 75 of Customs Act, 1962, Customs Central Excise Duties and Service Tax Drawback Rule, 1995 and in terms of relevant Customs Notification notifying the drawback rates (AIR). So the determination of correct classification at his level is necessary in terms of above statutory provisions. Moreover, the classification is decided after issue of show cause notice and by following the due process of law. As such the ratio of cited case law cannot be squarely made applicable to this case. 10.3 Government therefore agrees with the findings of Commissioner (Appeals) and holds that the HV switchgear (Circuit breaker SF6) not being panel or base mounted with more than one apparatus of Heading 85.35 or 85.36 remains to be classified under Heading 85.35. 11. In view of above circumstances, Government finds no infirmity in the impugned order-in-appeal and therefore upholds the same. 12. The revision applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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