Case Law Details
ABB India Limited Vs Union of India (Bombay High Court)
The Petitioner is a manufacturer of circuit breakers and switch gears of high voltage. The Petitioner exported the goods under ten shipping bills dated 21 January 2008, 5 February 2008, 12 February 2008, 4 March 2008, 11 March 2008, 11 June, 2008, 5 June, 2008, 10 November, 2008, 27 November 2008 and 11 December 2008. The Petitioners claimed draw back at the rate of 4% on FOB value under S.S.No. 85.37 of the Drawback Schedule.
The Petitioner received a communication from the Commissioner of Customs export under the subject “Query/Deficiency noted against drawback claim” and it was stated that the circuit breakers/switchgears did not fall under the entry S.S. No. 85.37 but falls under S.S. No. 85.35 and 85.36. The Petitioner was given a personal hearing by the Commissioner of Customs who passed an order on 31 July 2009. That the circuit breakers exported by the Petitioner under the concerned shipping bills was classified under Tariff item S.S.No.85.35 in the drawback schedule. The Assistant Commissioner of Customs by the impugned order held that the goods were not eligible for drawback under S.S. No.85.37 at the rate of 4% and 3.6% but under S.S. No. 85.35 at the rate of 3.2 % and 2.7%. Being aggrieved by this order Petitioner filed appeal before the Commissioner of Customs (Appeals). The Petitioner reiterated the contentions that the goods exported was Petitioner’s under the Shipping bill would fall under S.S.No. 85.37. As regards the drawback under S.S. No. 85.35 at the rate of 3.2% and 2.7% some amount has been paid to the Petitioner.
It was contended that the order passed by the Commissioner (Appeals), Vadodara dated 31 December 1997 in respect of the same goods manufactured by the Petitioner they were classified under Ch. H. 85.37 of CETA, 1985 was not taken into consideration.
In the light of the fact that there was a pre-existing order of the Commissioner (Appeals) inter parte regarding the same product, where different classification and impugned order has been arrived at and which supports the claim of the Petitioner, the same should have been considered and the Petitioner is right in contending that failure to do so has caused serious prejudice to the Petitioner. In this position, we are of the opinion that the proceedings need to be remanded to the Appellate Authority for considering the effect and implication of the order in Appeal dated 31 December 1997. Since the classification, under the impugned orders will have to be quashed and set aside to be considered afresh, we keep the contention of the parties regarding the interpretation of the entries open.
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