2011 (1) TMI 665

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..... ndent had imported grey cotton fabrics in a consignment covered by one Bill of Entry and cotton/lycra fabrics in six consignments covered by six Bills of Entry during the period from April to August, 2008. The goods were assessed to duties of customs including countervailing duty by the assessing authority who rejected the importers claim for exemption from payment of countervailing duty in terms of the above notification. The assessments were challenged before the Commissioner (Appeals) in respect of the countervailing duty. The learned Commissioner (Appeals) allowed the assessee's appeals by way of remand. He directed the original authority to reconsider the assessee's claim for the benefit of Notification No. 30/2004-C.E. in the light of .....

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..... geable to countervailing duty if imported into India. Therefore, a person claiming the benefit of the above notification in respect of the fabrics containing lycra filaments will have to establish that the condition attached to the notification was complied with. 3. On the other hand, the learned counsel submits that the issue is squarely covered by the decision in Prashray Overseas Pvt. Ltd. v. Commissioner - 2008 (232) E.L.T. 63 (Tri. - Chennai), wherein the benefit of the above notification was held to be admissible to the party who imported silk yarn and fabrics from China. In the cited case, it was established that, during the period of dispute, an Indian manufacturer of yarn or fabric would not have been required to claim CENVAT .....

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..... sent appeal, the appellant has not claimed that any input used in the imported fabrics was classifiable under a Tariff Heading not included in the Table annexed to Notification No. 30/2004-C.E. In this scenario, the ratio of the decisions cited by the learned counsel will be squarely applicable and consequently the benefit of exemption from payment of countervailing duty should be allowed to the respondent. 5. Another aspect of this case is that the learned Commissioner (Appeals) chose to remand the case to the original authority following an earlier precedent. Order-in-Appeal No. 127/06 passed by the Commissioner of Customs (Appeals), Mumbai-II (copy supplied by the learned counsel) was apparently kept in view by the lower appellate .....

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