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Commissioner of Customs (Port) , Kolkata Versus M/s. Shiv Shanti Exim Pvt. Ltd.

2016 (12) TMI 572 - CESTAT KOLKATA

Import of undyed and unprinted silk fabrics - Exemption from CVD subject to not availing Cenvat Credit on inputs - Benefit under Notification No.30/2004 dated 09.07.2004 - Held that: - I find that the issue is no more res-integra in view of the decision of the case of M/s SRF Ltd., M/s ITC Ltd Versus Commissioner of Customs, Chennai, Commissioner of Customs (Import And General), New Delhi [2015 (4) TMI 561 - SUPREME COURT], where it was held that when the credit under the CENVAT Rules is not adm .....

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K. K. Sanyal, Consultant for the Respondent ORDER Per: Shri P. K. Choudhary 1. Heard both sides and perused the appeal records. 2. The respondents imported undyed and unprinted silk fabrics and claimed exemption benefit under Notification No.30/2004 dated 09.07.2004 for determining the additional customs duty (CVD). The appellate authority denied the benefit of the exemption notification. By the impugned order, the Commissioner (Appeals) allowed the appeals of the respondents. Hence, Revenue fil .....

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s. & C.Ex., Delhi-IV [2009(247) E.L.T. 188(Tri.-Del.)] d) SRF Ltd. Vs. Commr. Of Customs, Chennai [2015(318) E.L.T. 607(S.C.)] 4. The main contention of the revenue is that where the importer does not fulfill the conditions stipulated in excise notification, he cannot claim the benefit of the same for CVD purpose. I find that the issue is no more res-integra in view of the various decisions as cited above. In the case of Prashray Overseas Pvt. Ltd. Vs. Commr. Of Customs, Chennai (Supra), the .....

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estion now arises as to whether this condition works in relation to the goods imported by the assessee. Incidentally, it has been pointed out by the learned counsel that this is a condition which does work in relation to a large number of goods mentioned in the Table annexed to the notification. However, according to the learned counsel, the condition is unworkable in relation to silk yarn and fabric. It has been submitted that raw silk/silk filament, which is a natural product, is the input for .....

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ties agree that when silk yarn was imported during the material period no CVD was required to be paid in terms of Notification No.20/2006-Cus., dated 1-3-2003. Accordingly it is argued that there is no question of any manufacturer of silk fabric in India availing Cenvat credit on his input viz. silk yarn. In this view of the matter, the demand of CVD on yarn and fabric is challenged. 4. We have found a formidable point in the submissions of the learned counsel. It has been established that, duri .....

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n the case of SRF Ltd. Vs. Commr. Of Customs, Chennai (Supra) on the identical issue, allowed the appeal of the importer. The relevant portion of the said decision is reproduced below: 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 = 1992 (61) E.L.T. 352 (S.C.)] which was affirmed by the Constitution Bench in the case of Hyderabad Industri .....

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elied 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 of the Customs Act read with Section 2 of th .....

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