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Sri Vasavi Gold & Bullion Pvt. Ltd. Versus Commissioner of Customs, Chennai

2015 (11) TMI 498 - CESTAT CHENNAI

Admissibility of CVD exemption on imported goods - Rate of duty application - CVD payable on the imported goods whether chargeable @ 6% under Notification No.19/2012-CE dt. 17.3.2012 or @ 1% in terms of Notfn 12/2012-CE d. 17.3.2012 - Held 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 .....

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able 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 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 co .....

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y 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 satisfied. - As there is no stay granted by the apex court against Supreme Court order [2015 (3) TMI 690 - SUPREME COURT], the ratio of the Apex Court decision applicable to this case. The appellants have claimed CVD exemption under Notfn 12/12 before th .....

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T CHENNAI), we hold that appellants are eligible for CVD @ 1% under Notification No.12/2012-CE dt. 17.3.2012 as at Sl.No.199 of the Table. Accordingly, the impugned order is set aside - Decided in favour of assessee. - Appeal No.C/40595/2013 - FINAL ORDER No.41448/2015 - Dated:- 15-10-2015 - Shri R. Periasami, Technical Member And Shri P.K. Choudhary, Judicial Member For the Petitioner : Shri Rabeen Jayaram, Advocate For the Respondent : Shri R. Subramanian, AC (AR) ORDER Per R. Periasami The ap .....

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.2011 which was amended by aforesaid Notification No.19/2012-CE dt. 17.3.2012 enhancing the rate of excise duty @ 5% ad valorem to 6%. Appellant claimed the relevant benefit of notification and paid duty and cleared the goods. Subsequently, the appellant preferred appeal against Bill of Entry claiming CVD under Notification 12/2012-CE dt. 17.3.2012 chargeable @ 1%. The Commissioner (Appeals) after following the principles of natural justice passed the impugned order denying the notification No.1 .....

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e 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 jeweller .....

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jewellery. Therefore, they are eligible for Sl.No.199 of Notification No.12/2012. In support of his claim he relied Supreme Court's judgement in the case of SRF Ltd. Vs CC Chennai - 2015-TIOL-74-SC-CUS and also relied this Tribunal order in the case of CC Chennai Vs Enterprises International Ltd. & Others - 2015-TIOL-1887-CESTAT-MAD. where this Tribunal has dismissed the batch of Revenue appeals. 5. On the other hand, Ld. A.R for the Revenue submits that they themselves claimed Notificat .....

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appellant has not paid duty under protest and also not complied with the condition No.25 and they are not eligible for CVD @ 1%. The Bill of Entry was self-assessed by the appellant themselves. He relied the following citations :- (i) CC ICD New Delhi Vs Dr. Roshan Lal Agarwal & Sons Pvt. Ltd. 2014-TIOL-1963-CESTAT-DEL (ii) Fresenius Kabi India P. Ltd. Vs CC (Imports), Nhava Sheva - 2014 (300) ELT 309 (Tri.-Mumbai) 4. After hearing both sides, we find that the issue falls on a narrow compas .....

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ion (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the excisable goods of the description 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 l .....

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.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 Ministry of Finance (Department of Revenue), No. 3/2005-Central Excise, dated the 24th February, 2005, hereby exempts the excisable goods of the description specified in column (3) of the Table below read with relevant List appended hereto and falling within the Chapter, heading or .....

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this notification, if any, specified in the corresponding entry in column (5) of the Table aforesaid : TABLE Sl.No. Chapter or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Condition 199 7113 I) Articles of jewellery; (II) Articles of silver jewellery 1% Nil 25 - ANNEXURE Condition No. Conditions 25 If no credit under rule 3 or rule 13 of the CENVAT Credit Rules, 2004, has been taken in respect of the inputs or input services used in the manufacture of the .....

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er (Appeals) and the Commissioner (Appeals) denied the benefit by holding CVD exempted by Nofn.12/2012 which is a conditional notification and the conditions have not been fulfilled by the appellant at the time of import. In this regard, reliance is placed on the Supreme 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 V .....

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tion 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 India. Yarn manufa .....

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of CVD on imports is regulated by the following provisions of the Customs Tariff Act, 1975. "3. Levy of additional duty equal to excise duty. - Any article which is imported into India shall, in addition, be liable to a (1) duty (hereafter to 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 addi .....

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ts of the manufacturers in India. As no duty was payable on silk yarn either indigenous or imported, indigenous silk fabrics were not subject to central excise duty during the material period in terms of Notification No. 30/04-C.E. (supra). Therefore imported silk fabrics imported during the material period need not beat any CVD. The impugned imports are eligible for the exemption contained in Notification No. 30/04. This was also the ratio of our final order Nos. 941, 942/2008 dated 28-8-2008 [ .....

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s 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 denie .....

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oresaid condition is to the 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. 6. 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 .....

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e 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 satisfied. 7. 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] = 2002-TIOL-683-SC-CUS-LB which was affirmed by the Co .....

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nt in Thermax Private Limited (supra) was relied upon by this Court in Hyderabad Industries Ltd. (supra) while 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 o .....

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e 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 article is one which has been manufactured or produced, then it must be presumed, for the purpose of Section 3(1), that such an artic .....

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he opinion that on the facts of these cases, these appeals are squarely covered by the aforesaid judgments. We accordingly hold that appellants were entitled to exemption from payment of CVD in terms of Notification No. 6/02. The appeals are allowed and the demand of CVD raised by the respondents-authorities is set aside." The ratio of the Apex Court's decision is squarely applicable to the present case where CVD exemption was denied under Notfn 30/2004 where the proviso to the notifica .....

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as been reiterated in Motiram Tolaram v. Union of India - (1999) 6 SCC 375 = 1999 (112) E.L.T. 749 (S.C.) = 2002-TIOL-856-SC-CUS, CCE v. J.K. Synthetics (2000) 10 SCC 393 = 2000 (120) E.L.T. 54 (S.C.), Lohia Sheet Products v. Commr. of Customs - (2008) 11 SCC 510 = 2008 (224) E.L.T. 349 (S.C.) = 2008-TIOL-38-SC-CUS and Collector of Customs (Preventive) v. Malwa Industries Ltd. - (2009) 12 SCC 735 = 2009 (235) E.L.T. 214 (S.C.) = 2009-TIOL-17-SC-CX In fact, in Lohia Sheets and Malwa Industries ca .....

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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 co .....

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that the aforesaid judgments were incorrectly decided. In fact, by distinguishing the ratio of the said cases, the Constitution Bench impliedly gave its imprimatur to the principle laid down in the aforesaid judgments." 16. In view of the above ruling by Apex Court, we are unable to accept the Revenue's plea that the Apex Court decision of SRF Ltd. and M/s.Motiram Tolaram are in direct conflict. Hon'ble Supreme Court has clearly considered all the previous decisions of Apex Court in .....

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