TMI Blog2015 (11) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... paid." 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. 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 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 the judgment of the Bombay High Court in the case of Ashok Traders v. Union of India [1987 (10) TMI 53 - HIGH COURT OF JUDICATURE AT BOMBAY], wherein the Bombay High Court had held that "it is impossible to imagine a case where in respect of raw nephtha used in HDPE in the foreign country, Central Excise duty leviable under the Indian Law can be levied or paid." 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 sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of appeal and the same was dismissed vide Misc.Order No.42647/2013 dt. 7.11.2013. Against MISC order of this Tribunal, the appellant preferred C.M.A before the Hon'ble High Court of Madras and the Hon'ble High Court in their order dt. 25.2.2014 in C.M.A. No.243/2014 directed the Tribunal to dispose of appeal on merits within a period of 4 months from the date of appointment of second Member of the Tribunal. With due compliance of Hon'ble High Court order, appeal was listed for hearing on 1.7.2014 where the advocate sought for time. Subsequently, again it was listed on 23.10.2014, 4.2.2015, 22.4.2015, 13.7.2015 and 28.9.2015. In all these occasions, the advocate repeatedly sought for adjournment. Finally the matter was listed today. 4. Heard both sides. Ld. Advocate submits that appellants imported jewellery and submits that articles of jewellery is charged under two different notifications. One is 2/2011-CE dt.1.3.2011 (as amended) chargeable to 6% without any condition whereas the Notification No.12/2012 dt.17.3.2012 at Sl.No.199 of the Table wherein CVD on articles of jewellery chargeable @ 1% with a condition that as per the condition No.25, no cenvat credit un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iption specified in column (3) of the Table below and falling under Chapter, heading, sub-heading or tariff item of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), specified in corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon under the said Central Excise Act, as is in excess of the amount calculated at the rate of 6% ad valorem : TABLE S.No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of the excisable goods (1) (2) (3) 48 7113 Articles of jewellery Notification: 12/2012-C.E. dated 17-Mar-2012 Exemption and effective rates of duty for specified goods of Chapters 1 to 98 Jumbo Exemption Notification Nos. 3/2005-C.E., 3/2006-C.E., 4/2006-C.E., 5/2006-C.E., 6/2006-C.E. and 10/2006-C.E. replaced In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) and in supersession of (i) notification of the Government of India in the Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court decision in the case of SRF Ltd. Vs CC Chennai and ITC Ltd. Vs CC New Delhi 2015-TIOL-74-SC-CUS. By relying Hon'ble Supreme Court's judgement (supra), this Tribunal in a batch of appeals in the case of CC Chennai Vs Enterprises International Ltd. (supra) on an identical issue of CVD exemption allowed and rejected the Revenue appeals and upheld the impugned orders. The relevant paragraphs of the Tribunal's order are reproduced below :- 13. On the question of admissibility of CVD exemption, we find the notification No.30/2004-CE dt. 9.7.2004 at Sl.No.5 of table exempts excise duty on silk yarn and silk fabrics falling under Chapter 54.01 to 54.07. The proviso to the notification stipulates a condition that nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs or capital goods has been taken under the provisions of the CCR 2002. This very issue was discussed in the case of Prashray Overseas Pvt. Ltd. [2009 (235) ELT 300 (Tri.-Chennai) = 2008-TIOL-2349-CESTAT-MAD. The relevant paragraph-3 of the order is reproduced as under :- 3. We find that no Central Excise duty is payable on raw silk produced in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Supreme Court in their recent order in the case of SRF Ltd. Vs CC Chennai (supra) held that the appellants are entitled to exemption from payment of CVD under Notification No.6/2002 and allowed the civil appeal. The relevant paras 3 to 8 of the said Supreme Court's order is reproduced as under :- 3. 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 polypropylenemultifilament yarn of 210 deniers with tolerance of 6 per cent. Nil - 20 5402.41 5402.49 5402.5 5402.59 5402.61 or 5402.69 4. As per the aforesaid entry, the rate of duty is nil. Condition No. 20 of thisNotification, which was relied upon by the authorities below in denying the exemption f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eit 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 first limb clarifies that the duty chargeable under Section 3(1) would be the excise duty for the time being leviable on a like article if produced or manufactured in India. The condition precedent for levy of additional duty thus contemplated by the explanation deals with the situation where a like article is not so produced or manufactured'. The use of the word so' implies that the production or manufacture referred to in the second limb is relatable to the use of that expression in the first limb which is of a like article being produced or manufactured in India. The words if produced or manufactured in India' do not mean that the like article should be actually produced or manufactured in India. As per the explanation if an imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions in Hyderabad Industries and Thermal cases. As such, it is now settled that the rate of duty would be only that which an Indian manufacturer would pay under the Excise Act on a like Article. Therefore, the importer would be entitled to payment of concessional/reduced or nil rate of countervailing duty if any notification is issued providing exemption/remission of Excise duty for a like article if produced/manufactured in India. 16. We may mention that in the case of Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal Ors. - (2011) 1 SCC 236 = 2010 (260) E.L.T. 3 (S.C.) = 2010-TIOL-95-SC-CX-CB, a three Judge Bench of this Court had raised certain doubts on the correctness of the principle contained in Thermax Private Limited (supra) as well as in J.K. Synthetics (supra) and referred the matter to a larger Bench. Reference order is reported as (2005) 8 SCC 164 = 2005 (188) E.L.T. 353 (S.C.) = 2005-TIOL-126-SC-CX. The Constitution Bench decided the said case, which is reported as (2011) 1 SCC 236. From the reading of para 39 to 41 of the said judgment it becomes clear that though these cases were held not applicable to the fact situation and were distinguis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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