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2015 (4) TMI 561 - SUPREME COURT

2015 (4) TMI 561 - SUPREME COURT - 2015 (318) E.L.T. 607 (SC) - Import of Nylon Filament Yarn - Denial of Exemption form CVD under Notification No. 6/2002-CE dated 01.03.2002 - denial on the ground that cenvat credit was availed - whereas it was not possible to avail the credit - Held that:- the CEGAT has come to the conclusion that when the credit under the CENVAT Rules is not admissible to the appellant, question of fulfilling the aforesaid condition does not arise. In holding so, it followed .....

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hich was not possible of satisfaction had to be treated as not satisfied. - Following decision of Thermax Private Limited v. Collector of Customs (Bombay), New Customs House [1992 (8) TMI 156 - SUPREME COURT OF INDIA] and Hyderabad Industries Limited v. Union of India [1999 (5) TMI 29 - SUPREME COURT OF INDIA] and AIDEK Tourism Services Private Limited v. Commissioner of Customs, New Delhi [2015 (3) TMI 690 - SUPREME COURT] appellants were entitled to exemption from payment of CVD in terms of No .....

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, Sr.Adv., Mr. Arijit Prasad, Adv., Ms. Shweta Garg, Adv. and Mr. B. Krishna Prasad, Adv. ORDER In both these appeals, identical question of law has come up for consideration. For sake of convenience, we will take note of the facts appearing in Civil Appeal No. 9440 of 2003. The appellant herein had imported Nylon Filament Yarn of 210 deniers falling under Chapter 54 of the Customs Tariff. The appellant claimed nil rate of additional duty of customs by relying on exemption in terms of Serial No. .....

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Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as 'CEGAT'), even the CEGAT has affirmed the order of the authorities below and dismissed the appeal. Entry/ Serial No. 122 in the Notification No. 6/2002 reads as under - S. No. Chapter or heading No. or sub-heading No. Description of goods Rate under the First Schedule Rate under the Second Schedule Condition No. 122 5402.10 Nylon filament yarn or polypropylene multifilament yarn of 210 deniers with tolerance of 6 p .....

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effect that the importer should not have availed credit under rule 3 or rule 11 of the CENVAT Credit Rules, 2002, in respect of the capital goods used for the manufacture of these goods. In the present case, admitted position is that no such CENVAT credit is availed by the appellant. However, the reason for denying the benefit of the aforesaid Notification is that in the case of the appellant, no such credit is admissible under the CENVAT Rules. On this basis, the CEGAT has come to the conclusio .....

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aid." Thus, the CEGAT found that only those conditions could be satisfied which were possible of satisfaction and the condition which was not possible of satisfaction had to be treated as not satisfied. We are of the opinion that the aforesaid reasoning is no longer good law after the judgment of this court in Thermax Private Limited v. Collector of Customs (Bombay), New Customs House [1992 (4) SCC 440] which was affirmed by the Constitution Bench in the case of Hyderabad Industries Limited .....

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ile interpreting Section 3(1) of the Tariff Act itself; albeit in somewhat different context. However, the manner in which the issue was dealt with lends support to the case of the assessee herein. In that case, the court noted that Section 3(1) of the Tariff Act provides for levy of an additional duty. The duty is, in other words, in addition to the customs duty leviable under Section 12 of the Customs Act read with Section 2 of the Tariff Act. The explanation to Section 3 has two limbs. The fi .....

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