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Commissioner of Customs (Port) , Kolkata Versus M/s. Elegant Fabric, M/s. Salasar Corporation

2016 (12) TMI 761 - CESTAT KOLKATA

Exemption benefit under Notification No.30/2004 dated 09.07.2004 - import of undyed and unprinted silk fabrics - non-fulfillment of condition stipulated in notification - Held that: - It is noted that the Hon'ble Supreme Court in the case of SRF Ltd. vs. Commr. Of Customs, Chennai [2015 (4) TMI 561 - SUPREME COURT] on the identical issue, allowed the appeal of the importer where the CEGAT found that only those conditions could be satisfied which were possible of satisfaction and the condition wh .....

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ification No. 6/02. - In view of the above, I do not find any reason to interfere with the Order of the Ld.Commissioner (Appeals) - appeal dismissed - decided against Revenue. - C/217/10, C/140/10 & 3)C/141/10 - FO/A/76184-86/16 - Dated:- 9-11-2016 - Shri P.K.Choudhary, Member (Judicial) Shri K.C.Jena, ADC(AR) for the Appellant Shri S.K.Mehata, Advocate for the Respondent ORDER Per: Shri P. K. Choudhary 1. Heard both sides and perused the appeal records. 2. The respondents imported undyed an .....

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t submits that the issue is covered in favour of the respondents by various decisions as under:- a) Prashray Overseas Pvt. Ltd. Vs. Commr. Of Customs, Chennai [2008(232) E.L.T.63 (Tri.-Chennai)] b) Prashray Overseas Pvt. Ltd. Vs. Commr. Of Customs, Chennai [2009(235) E.L.T.300 (Tri.-Chennai)] c) Mapsa Tapes Pvt. Ltd. Vs. Commr. Of Cus. & 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 reve .....

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but only with reference to the specific terms of the subject notification. We have already reproduced the relevant condition attached to Notification No.30/2004-C.E. ibid. Admittedly, both the yarn and fabric are eligible for exemption from payment of duty of excise under the above notification subject to the above condition. The question 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 .....

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a manufacturer of silk yarn availing Cenvat credit on input does not arise and, to this extent, the condition attached to the notification is irrelevant. It is further submitted that, for the silk fabric, the input is silk yarn, which is also claimed to be not chargeable to duty of excise by virtue of the above notification. Both parties 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. Accor .....

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stion of such manufacturer availing input-duty credit, the input being not chargeable to duty of excise. In this view of the matter, the demand of CVD on the yarn and fabric imported by the appellants is not sustainable in law. The impugned order is set aside and this appeal is allowed. 5. It is noted that the Hon'ble Supreme Court in 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 decisi .....

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ism Services Private Limited v. Commissioner of Customs, New Delhi [Civil Appeal No. 2616 of 2001 - 2015 (318) 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 .....

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