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Sony India Pvt Ltd Versus Commissioner of Customs (Import & General) , New Delhi

2016 (12) TMI 514 - CESTAT NEW DELHI

Exemption from CVD - import of mobile phones - N/N. 12/2012-CE dated 17.3.2012 - The Notification No. 12/2012 also provided a concessional rate of CVD of 1% on import of mobile phones classified under CTI 8517 subject to the condition 16 of Notification No. 12/2012-CE, wherein the assessee should not have taken credit under the Cenvat Credit Rules, 2004 in respect of the inputs and capital goods used in the manufacture of these goods - Held that: - these mobile phones are imported and the cenvat .....

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ification No. 6/2002. - After the impugned period and after the judgment of the SRF Ltd., department itself has given the benefit to the appellant for concessional rate of duty till the statutory amendment has taken place in notification No. 12/ 2012. Therefore, we hold that appellants are entitled for benefit of exemption by satisfying the condition No. 16 of notification no. 12/2012. In these terms, impugned orders are set aside - appeal allowed - decided in favor of appellant-assessee. - .....

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of Entry for import of mobile phones and paying additional Customs duty as per the rates under Schedule of the Central Excise Tariff Act, 1985. Prior to 1.3.2015, the appellants were required to pay the duty at the rate of 6% of CVD by virtue of S.No. 263A(i) of Notification No. 12/2012 CE dated 17.3.2012 and from 1.3.2015 onwards at the rate of 12.5% rate of CVD. The Notification No. 12/2012 also provided a concessional rate of CVD of 1% on import of mobile phones classified under CTI 8517 sub .....

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2012 was denied to the appellant. Aggrieved from the said order, appellants are before us. 4. Learned advocate appearing for the appellant submits that issue has been settled by the Hon ble Apex Court in the case of SRF Ltd. vs. Commissioner of Customs, Chennai [2015 (318) ELT 607 (SC)]. Therefore, impugned orders are required to be set aside and appellants are entitled to benefit of concessional rate of duty in terms of notification No. 12/2012. 5. On the other hand, learned AR opposed the cont .....

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ition 16 of the notification No. 12/2012, no cenvat credit on inputs and capital goods have been taken for manufacturing of mobile phones. Admittedly, these mobile phones are imported and the cenvat credit has not been taken by a foreign manufacturer of the said goods. The said issue has been examined by Hon ble Apex Court in the case of SRF Ltd. (supra) wherein the Hon ble Supreme Court held as under: 6. In the present case, admitted position is that no such Cenvat credit is availed by the appe .....

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], 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 satisfied. 7. We are of the opinion that the aforesaid reasoning is no longer good law aft .....

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) E.L.T. 3 (S.C.)], the principle which was laid down in Thermax Private Limited and Hyderabad Industries Limited was summarised 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 .....

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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 In .....

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d that the article imported had been manufactured or produced in India and then to see what amount 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. 6/2002. The appeals are allowed and the demand of CVD raised by the respondents-authorities is set aside. 8. W .....

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y since those were cases where "there is no assessment order on dispute/contest, like as is in the present case." It was held in Aman Medical Products Limited (supra) that the Assessee in was entitled to maintain the refund claim notwithstanding that there was no appeal filed against the assessed B/Es. 13. As far as the present case is concerned, there was indeed no assessment order as such passed by the customs authorities. Although under Section 2 (ii) of the Act, the word 'asses .....

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