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M/s Sparkle International Versus Commissioner of Customs, Amritsar

2015 (12) TMI 174 - CESTAT NEW DELHI

Exemption from Special Additional Duty under Notification No. 20 /2006-Cus in respect of the impugned goods in terms of entry No. 50 in the table appended to Notification No.20/2006-Cus - Held that:- Once the impugned goods were removed from the said 1st Schedule vide Finance Act, 2011, the benefit of exemption Notification No.20/2006-Cus no longer remained available to the appellant in respect of the impugned goods. The appellant has not disputed fact that the impugned goods were not specified .....

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on No. 102/2007-Cus and in effect held that the Central government could not collect the impugned SAD in that case. As CESTAT is not competent to challenge the legality of a Notification issued by Central Govt, prima facie, the order is issued without jurisdiction and an order issued without jurisdiction is a nullity. More importantly, the said CESTAT order (in the case of Katyal Metal Agencies [2015 (1) TMI 323 - CESTAT KOLKATA]) is only an interim order dismissing stay petition of Revenue and .....

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er (T) For the Appellant : Shri Virendra Prabhakar, Adv For the Respondent : Shri BB Sharma, DR ORDER Per R. K. Singh The appellant has filed Miscellaneous Applications for complete waiver of pre-deposit in respect of its various appeals filed against Orders of the first appellate authority pleading that the appellate orders are not sustainable in the light of the fact that the issue involved is covered in its favour by CESTAT in the case of CC (Prev.), Patna Vs. Katyal Metal Agencies [2014 (306 .....

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st Schedule vide Finance Act, 2011. As a consequence, the benefit of exemption under Notification No.20/2006-Cus (serial No. 50 of the table appended to the said Notification) was not available to the goods imported after the said amendment to the said 1st Schedule. Consequently the impugned demands were confirmed. 3. The appellant has contended that (i) the goods are fully exempt from excise duty under Notification No. 30/2004-CE and therefore countervailing duty could not be charged, (ii) The .....

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s (supra) in its favour. 4. Ld. Departmental Representative on the other hand stated that by virtue of the fact that the impugned goods are not specified in the 1st Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957, the exemption under Notification No. 20/2006-Cus is clearly not available and therefore the impugned demands are sustainable. 5. During the hearing both parties agreed that as the matter has been heard at length, the appeals could be disposed of. Acc .....

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nce) Act, 1957 (58 of 1957) Nil It is, thus, evident from the above entry (No.50) that once the impugned goods were removed from the said 1st Schedule vide Finance Act, 2011, the benefit of exemption Notification No.20/2006-Cus no longer remained available to the appellant in respect of the impugned goods. The appellant has not disputed fact that the impugned goods were not specified in the said 1st Schedule during the relevant period. It is only contesting the demand on the ground that as per l .....

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s regard and imposed SAD on the impugned goods, it is not open to CESTAT to challenge the validity of such levy. The Tribunal being a creature of the statute is bound to follow the provisions thereof and this legal position is not under challenge. As regards the judgement in the case of CC (Preventive), Patna Vs. Katyal Metal Agencies (supra), we reproduce paragraphs 4 and 5 of the said judgement below:- "4. We find that the Special CVD is as per sub-section 5 of Section 3 of CETA, 1985. Th .....

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facts of the case, I have come to the conclusion that the element of CVD is a fax in lieu of Sales Tax/VAT and that once the Importer fulfils the obligation of paying both the CVD and the Sales Tax/VAT, then he is entitled to refund of the CVD he had paid, Now in this peculiar circumstance the fact remains that there is no Sales Tax on the Item (subject goods) imported as the same has come under the list of exempted List of Commodities, inserted vide Notification No. F.3(77)Fin.(T&E) 2005-0 .....

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