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TMI Blog2013 (8) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... ired for the manufacture of a complete "Chiller" have been utilized in the manufacture and export of "Chiller Model EDG 60A, SS90A and SD 70B CX". The shipping bills, customs invoices, packing list etc. confirm the fact that a complete "Chiller" was exported in SKD condition. In order to further verify whether a complete "Chiller" was exported, a list of dutiable inputs required for manufacturing a "Chiller" was drawn from SION. On comparing the list as per SION, the exporters list and actual inputs in the Brand Rate claim, it was found that the claim covered almost all the dutiable inputs required for manufacturing a complete "Chiller". The applicants had exported a complete "Chiller" in SKD condition classifiable under Heading 84.18 of Drawback Schedule and not just the components, parts and sub-assemblies of a "Chiller" for which All Industry Brand rate of drawback @ 1.1% is available. The Additional Commissioner (BRU), Central Excise, Pune-I Commissionerate, Pune, vide impugned order/letter dated 22-9-2010, has rejected the Brand Rate Application filed by the appellants. 3. The respondent preferred an appeal before Commissioner (Appeals), Central Excise Pune-I, who set aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SION. The respondent himself had provided a list of dutiable inputs required for manufacturing a complete chiller. On comparing the list of dutiable inputs as per SION vis-à-vis list of inputs provided by the respondent and actual inputs claimed in the Brand Rate Claim, it was found that the claim consists of almost all the dutiable inputs required for manufacturing a complete Chiller. This analysis concludes that a complete Chiller was exported. (c) Rule 6(1) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 applies to goods exported where duty drawback is not available under All Industry Rates. Therefore, conditions of Rule 6(1)(a) of the Drawback Rules are not satisfied in the instant case. 4.2 C.B.E. & C.'s Circular No. 26/2005-Cus., dated 8-6-2005 issued from F.No. 609/65/2005-DBK states that where All Industry Rate is available for the complete product, drawback shall be paid at that rate only. Brand Rate is attracted only when there is no All Industry Rate on the complete product, which is not the case here. Predecessor Commissioner (Appeals), Pune-I in a similar case in respect of the same respondent had upheld the order of the Additional C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awback available then Brand Rate is not eligible. It only states that exporter has an option to claim drawback either under AIR or under Brand Rate. In this particular case, we had made the shipments is CKD/SKD condition' and filed application for fixation of Brand Rate of Drawback. 5.3 The last sentence of the above quoted part of the impugned order-in-original - The shipping bills read with customs invoices, packing list etc. confirm the fact that a complete "Chiller" was exported in SKD condition. This evidences Addl. Commissioner (BRU), Pune-I was well aware of the fact that a complete Chiller was exported by the respondent in SKD condition. As an official of the department, it is quite evident on his part to know that brand rate of drawback would also be admissible for goods exported in CKD/SKD/unassembled condition as stipulated in Circular No. 26/2005-Cus., dated 8-6-2005. Paras 2 and 3 of the same are stressed upon. Being well known of both the facts, a complete chiller is exported in SKD condition and brand rate of drawback for the same is admissible under law, why Addl. Commissioner (BRU), Pune-I came down from already treaded path of law by him to that of injustice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orms showed that whatever was exported was a complete "Chillers" for which an All Industry Rate of Drawback @ 1.1% is available under sub-schedule heading No. 8418. The original authority in view of above situation concluded that Rule 6(1) of Duty Drawback Rules applies to the goods exported where duty drawback is not available under All Industry Rate and therefore rejected the brand rate fixation application. 10. On appeal by the respondent exporter herein the Commissioner (Appeals), Central Excise, Pune set aside the above orders of the original authority thereby allowing the exporter's claim for fixation of Brand Rate as per the relevant application/statements. It is finally noted that while the applicant department is denying the claim of fixation of Brand Rate of drawback after clubbing the impugned exports vide eight different shipping bills, exported from two different ports of exports, the Commissioner (Appeals) has analysed the factual situation of SKD condition exports under various lots. Also in addition to interpretation of the relevant statute both the applicant department and Commissioner (Appeals) are disputing the "correct" applicability of C.B.E. & C.'s Circular N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Industries - 2002 (143) E.L.T. 19 (S.C.)]. In this case matter there is no denial to the fact that the declared description of exported product which on verification of inputs used confirmed that was actually "Chiller" in SKD condition. The chillers stands covered under Heading No. 8418 of Duty Drawback Schedule for which All Industry Rate Drawback @ 1.1% is available. The original authority has to reject the drawback claim filed under Rule 6(1) of Duty Drawback Rules, 1995 because these provisions do not provide for fixation of any Brand Rate of Drawback when on All Industry Rate of Drawback is already available by virtue of above schedule read with the relied upon circular as above. The only legal domain available with the exporter was within the provisions of Rule 7(1) of the said Rules but only after satisfying that available All Industry Rate of Drawback was less than 4/5th of duties/taxes suffered on inputs used, which appears to be not a subject matter herein. The said circular also stipulated that brand rate of drawback would also be admissible for goods exported in CKD/SKD unassembled condition. 10.3 Government has also perused the letter F. NO. ICD/ DIGHI/THERMAX/AMEND ..... X X X X Extracts X X X X X X X X Extracts X X X X
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