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M/s PNP Polytex Pvt. Ltd. Versus Commissioner of Customs, Nhava Sheva

2016 (2) TMI 11 - CESTAT MUMBAI

Levy of additional Custom duty SAD @ 4% - goods of special importance - import of 'PVC Coated cloth of 68D/68D' under CTH 5903.10 - Held that:- additional duty of Excise is not chargeable and therefore appellant will not get shelter of subsection (5) of Section 3A from levy of SAD as provided under Section 3A. It is also to be noted that the intention of subsection (5) is that any one duty, either additional duty of Excise (GSI) or special additional duty shall be payable, for this reason subsec .....

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le by the appellant. - Decided against the assessee. - Appeal No. C/1089, 1090/04 - Final Order Nos. A/3473-3474/2015-WZB/CB, - Dated:- 16-10-2015 - P. S. Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Shri T Vishwanathan, Adv For the Respondent : Shri S J Sahu, Asstt. Commissioner (AR) ORDER Per Ramesh Nair These two appeals are directed against Order-in-Appeal No. 89/2004(JNCH) dtd. 17/8/2004 and OIA No. 93/2004 (JNCH) dated 20/8/2004 both passed by the Commissioner of Cust .....

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ene Non-Woven Fabric' under CTH 5603.9200 and the goods were assessed to duty at the rate 25% BD + 16% CVD + 4% SAD and cleared for home consumption after payment of duty. Appellant being aggrieved by the order of assessment filed appeals against the assessed Bill of Entries on the ground that goods were not subjected to additional Custom duty equivalent to additional excise duty (goods of special importance) in terms of Notification No. 7/2003-Cus dated 1/3/2003, 13/2003-Cus dated 1/4/2003 .....

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. C/1090/04 the goods were cleared under CTH 5603.9200 therefore the same is not in schedule for the purpose of charging additional excise duty (goods of Special importance) therefore SAD was correctly payable. As regard Appeal No. C/1089/04, he submits that the goods imported is undisputedly classified under CTH 5903.10. He submits that goods of 5903.10 is specified under fist schedule to the additional duty of excise (goods of special importance) Act, 1957. Accordingly it is chargeable to addi .....

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of section of additional duty of Excise (GSI) Act, 1957. He submits that in the subsection even though duty is not paid or payable by virtue of exemption notification but it is otherwise chargeable under the Act, 1957 subsection (5) of Section 3A is applicable and accordingly SAD is not chargeable. He relied upon judgments in case of Hind Rubber Factory vs. Union of India [1990 (48) ELT 363 (P&H)] wherein it was held that even if good is exempted the excisable goods shall not ceased to exci .....

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at in subsection (5) of Section 3A, the term used is chargeable to additional duty of Excise (GSI). He submits that chargeable means if the goods actually charged with additional excise duty then only the provision of Section3A will not apply but in the present case undisputedly the goods falling under Custom Tariff head 5903 attracts NIL rate of additional duty (GSI) by virtue of Notification No. 7/2003 dated 1/3/2003 therefore additional excise duty (GSI) is infect not chargeable and consequen .....

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e issue is whether goods are chargeable to additional excise duty or otherwise and it is undisputed that by virtue of exemption notification additional excise duty is not chargeable, therefore the fact and law point involved in the cited judgments is altogether different from the facts and law point of the present case. Hence judgment is not applicable. 5. We have carefully considered the submissions made by both the sides. 6. We find that Appeal No. C/1090/04 relates to import of the goods fall .....

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yable in terms of subsection (5) of Section 3A is of Custom Tariff Act, 1974 which is reproduced below: 3A. Special addition duty (1) Any article which is imported into India shall in addition be liable to a duty (hereinafter referred to in this section as the special additional duty), which shall be levied at a rate to be specified by the Central Government, by notification in the Official Gazette, having regard to the maximum sales tax, local tax or any other charges for the time being leviabl .....

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(Sr. No. 21 of the table appended to the Notification). In view of the said notification the additional duty (GSI) is not chargeable. The contention of the appellant that even though it is exempted, but it is chargeable under the Act, therefore subsection (5) is applicable in their case, is not convincing to us for the reason that as regard additional duty, it is levied under Act but is not chargeable by virtue of exemption notification even in subsection (5) also the term 'levied' and .....

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