TMI Blog2017 (10) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... Honble Supreme Court in the case of Thermax Pvt. Ltd. Vs. Collector of Customs [1992 (8) TMI 156 - SUPREME COURT OF INDIA], held that CVD will be equal to excise duty for the time being leviable on a like article if produced or manufacture in India. The Honble Apex Court went on to further observe that we have to forget that the goods are imported and imagine that the importer had manufactured the goods in India and determine the amount of excise duty that he would have been called to pay in that event. In the case of the present appellants themselves held that for additional duty, actual manufacture or production of a like article was not necessary and for that quantification of additional duty imported article has to be imagined as to be manufactured or produced in India and then to see what excise duty was leviable there on. Appeal dismissed - decided against appellant. - C/224/2007 - Final Order No.42204/2017 - Dated:- 27-9-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri C. Saravanan, Advocate for the Appellant Shri A. Cletus, Addl. Commissioner (AR) for the Respondent ORDER Per Bench Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plant and equipment)for the manufacture of filament yarns of chapter 54. Explanation.- For the purpose of this exemption, 'manufacture of yarns' means manufacture of filaments of organic polymers produced by, - (a) polymerization of organic monomers, such as polyamides, polyesters, polyurethenes, or polyvinyul derivatives; or (b)chemical transformation of natural organic polymers (cellulose, casein, proteins or algae), such as viscose rayon, cellulose acetate, cupro or alginates. 8% 2.2 Placing reliance on the notification, it is the submission on behalf of the appellant that condition of the notification having been fulfilled, it is entitled to the concessional rate of additional duty of customs @ 8% instead of normal rate of such duty payable. 2.3 The goods, namely filament yarns have been imported. The definition of import as per Section 2 (23) of the Customs Act, 1962 is as under:- import, with its grammatical variations and cognate expressions, means bringing into India from a place outside India The goods imported by them are therefore satisfies the first condition of the said notification No. 29/04, that the impugned go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise exemption Notification No. 29/04-CE, Sl.No. 5A for the purpose of discharging additional duty of customs (CVD). 4.3 In the first place, it would be useful to appreciate the scope of additional duty of customs which is the subject matter of controversy in this appeal. The mandate for additional duty of customs on imported goods is enshrined under Section 3 of the Act, as follows:- SECTION 3. Levy of additional duty equal to excise duty, sales tax, local taxes and other charges. (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article: Provided that in case of any alcoholic liquor for human consumption imported into India, the Central Government may, by notification in the Official Gazette, specify the rate of additional duty having regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side India . In the event, in our opinion, the impugned goods which have been imported, satisfy the requirement of having been procured from outside. 4.7 Coming to the other requirements of the exemption notification, the 8% reduced rate of central excise duty is extended only to yarns which have been subjected to a process by a manufacturer who himself does not have the facility for manufacture of filament yarns of Chapter 54. Hence the requirement for the input filament yarn to be procured from outside. Further, the process to which such input filament yarn is subjected to will not take out the final product out of the Chapter Heading 54. What is manufacture of yarns for the purposes of Notification is explained in (a) and (b) of Explanation thereto. 4.8 Evidently, therefore the reduced rate of central excise duty of 8% is to such yarn which has undergone any processreferred to in the S. No. 54 of the Notification. 4.9 Discernably, the filament yarn procured from outside will not be available to the manufacturer at a reduced rate of central excise duty, but only the resultant product manufactured using such input filament yarn will be eligible for notification benefit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Act, it has to be imagined that the articles imported had been manufactured or produced in India and then to see what amount of excise duty was leviable thereon. 4.15 In the case of M/s. Vareli Weaves Pvt. Ltd. Vs. UOI - 1996 (83) E.L.T. 255 (S.C.) , Honble Court unequivocally held that the countervailing duty must be levied only in the state in which they are when imported. The relevant portion of the judgment is reproduced as under:- 6. Countervailing duty must be levied on goods in the state in which they are when they are imported. Section 3 of the Customs Tariff Act so mandates. The POY imported by the appellants fell in the slot of 100 deniers and above but not above 750 deniers. It was, therefore, liable to that rate of countervailing duty as was provided for in the said clause (iv) of the exemption notification. There was no warrant for the levy of countervailing duty as provided for in the said clause (iii) upon the basis that, subsequent to the process of texturizing the POY that was imported would have the denierage therein stated. 4.16 We find that the above ratio has been reiterated by the Honble Apex Court in subsequent judgments like AIDEK Tour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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