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2015 (11) TMI 498 - CESTAT CHENNAI

2015 (11) TMI 498 - CESTAT CHENNAI - 2016 (343) E.L.T. 429 (Tri. - 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 cred .....

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t 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 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 suc .....

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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 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 th .....

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the apex court decision and this Tribunal's decision (2015 (8) TMI 191 - CESTAT 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 F .....

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3.2012. The Bill of Entry was assessed under Notification No.2/2011-CE dt. 1.3.2011 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 princip .....

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ibunal 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 su .....

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cturer. Therefore, availing cenvat credit does not arise. They are traders of 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 othe .....

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etition before the Hon'ble Supreme Court which is pending. He submits that 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 .....

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duty of 5% on specified goods In exercise of the powers conferred by sub-section (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 correspondi .....

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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 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 .....

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column (4) of the said Table and subject to the relevant conditions annexed to 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 t .....

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y claiming CVD exempted under different Notification 12/2012 before Commissioner (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 judg .....

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der 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 tha .....

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d in terms of Notification No. 20/06-Cus dated 1-3-2003. We find that the levy 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 exci .....

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cles made indigenously, this being a measure intended to safeguard the interests 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. T .....

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nt 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. 1 .....

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nputs or capital goods used in the manufacture of these goods." 5. The aforesaid 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 appel .....

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tha 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 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 H .....

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mmarised in the following manner: - "15.The ratio of the aforesaid judgment 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 i .....

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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 article is one which has been manufactured or produced, .....

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of excise duty was leviable thereon." (Emphasis supplied) 8. We are of the 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 .....

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(supra). The relevant para is extracted herein under :- "This position has 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. 21 .....

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ould 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 .....

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pplicable to the fact situation and were distinguished, the Court did not say 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 Su .....

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