TMI Blog2022 (2) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... PREME COURT ] and AIDEK TOURISM SERVICE PVT. LTD Vs. COMMISSIONER OF CUSTOMS, NEW DELHI [ 2015 (3) TMI 690 - SUPREME COURT ]. Wherein, it was held that the condition of non availment of Cenvat Credit on input/capital goods need not to be satisfied by the buyer/importer of such goods. In view of the above circular, the appellant was entitled for exemption from CVD at the time of clearance of the imported goods in terms of Notification No.30/2004-CE dated 09.07.2004. Needless to say that, it is a settled legal position by the Hon ble Apex Court that board circular/instructions are binding on the departmental officers. Therefore, the Assessing Officers while assessing the Bill of Entry was duty bound to verify the eligibility of the exemption Notification No. 30/2004-CE and to extend the benefit of the same. However, the Assessing Officer has not given any heed in extending the benefit of the said notification. The appellant are clearly entitled for the exemption Notification No. 30/2004-CE dated 09.07.2004 for exemption from CVD on the imported goods. Appeal allowed. - Customs Appeal No. 10514-10598 of 2017 - Final Order No. A/10106-10190/2022 - Dated:- 18-2-2022 - H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HERO CYCLES LTD. 2009 (240) ELT 490 (Bom.) where it is held that a duty was cast on the assessing officer to consider the exemption notification, even if his attention was not drawn by the party. The SLP filed by the department has since been dismissed. 5. He also submits that issue is now covered by the various decisions of different courts on the subject matter. Reliance in this regard is placed on M/s ARTEX TEXTILE PVT. LTD. VS COMMISSIONER OF CUSTOMS ICD PATPARGANJ OTHES ICDS, NEW DELHI vide final Order No. 50953- 50954/2019 dated 24.07.2019. 6. On the other hand, Shri. Vinod Lukose, Learned Superintendent (Authorized Representative) appearing for the Revenue submits that the conditions of the notification have not been complied with and as such, the benefit provided therein is not available to the appellant. To support such stand, he has relied upon on the judgment of the Hon ble Madras High Court in the case of COMMR.OF CUS. (EXPORTS), CHENNAI Vs PRASHRAY OVERSEAS PVT. LTD. - 2016 (338) E.L.T. 44 (Madras). 7. We have carefully considered the submissions made by both the sides and perused the records.We find that in the present case the appellant at the time of cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment was that all such final products when imported by manufacturer importer would have attracted concessional excise duty as CVD, while the domestic manufacturer of such final products had to forgo input tax credit to be eligible for such concessional rate. This would put the domestic manufacturers at a disadvantage vis-a-vis imports and would adversely impact the Make in India Policy of the Government. 3. The judgment of the Hon'ble Supreme Court was examined in CBEC and it was found that there were certain errors apparent on record/interpretational issues and. with the concurrence of the Ld. Attorney General, a Review Petition/Revision Application has been filed against the same. 4. However, keeping in view the adverse implications of the aforesaid judgment on the domestic industry, legal opinion was sought from the Ministry of Law Justice as to whether pending the aforesaid Review Petition/Revision Application, such conditions in the relevant notifications be suitably amended so as to make the intention abundantly clear (that these conditions are to be satisfied by the manufacturers of such goods and not the buyer/importer of such goods). 5. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the Assessing Officer has not given any heed in extending the benefit of the said notification. In this fact, it cannot be expected from the appellant to lodge any protest as they have also paid duty oversightly without claiming such notifications. Therefore, we do not agree with the contention of the Learned Commissioner that since the appellant have not lodged any protest the benefit of notification cannot be given. We further note that it is a settled law in various judgments that the benefit of exemption notification can be claimed at any stage, therefore, even after clearance of goods when the exemption benefit claimed the same should be extended to the assessee. As regard, the other ground of rejection by the Commissioner (Appeals) that the appellant have not satisfied the condition of non taking of Cenvat Credit on inputs/capital goods, the very same issue has been dealt in above referred board circular dated 21.07.2015 by considering as settled legal issue by the Hon ble Supreme Court in the case of SRF LTD. (Supra). Therefore, in the present case the appellant have imported the goods, hence, the condition of notification i.e. non taking of Cenvat Credit on input/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue of grant of CVD exemption under Notification No. 30/2004-C.E., dated 9-7-2004 has been discussed and allowed appeals. The LAA has rightly relied on the Tribunal's orders (supra) which is binding on him and allowed the appeals. Merely for the reason Revenue filed appeal before Hon'ble High Court, Madras cannot be a ground to deny the benefit allowed by this Bench as no stay granted by the High Court. Therefore, once the Tribunal has already decided the issue and the decision has not been set aside and there appears to be no error on the part of the LAA relying on this Tribunal's decision. In view of Hon'ble Supreme Court relying in the case of Union of India v. Kamlakshi Finance Corporation Ltd. - 1991 (55) E.L.T. 433 (S.C.), this Bench decision is binding on the jurisdictional lower authorities and they are bound to follow the said decision. On this account alone, the Revenue's appeals are liable to be rejected. 13. On the question of admissibility of CVD exemption, we find the Notification No. 30/2004-C.E., dated 9-7-2004 at Sl. No. 5 of table exempts excise duty on silk yarn and silk fabrics falling under Chapters 54.01 to 54.07. The proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in Notification No. 30/2004. This was also the ratio of our final order Nos. 941, 942/2008, dated 28-8-2008 [2008 (232) E.L.T. 63 (Tribunal)] in respect of the same appellants for 44 consignments imported earlier. The appeal is allowed. 14. We find that Revenue relied on the Supreme Court's decision in the case of Motiram Tolaram v. UOI (supra) and the Tribunal's Larger Bench decision in Priyesh Chemicals Metals (supra). In this regard the Hon'ble Supreme Court in their recent order in the case of SRF Ltd. v. CC, Chennai (supra) held that the appellants are entitled to exemption from payment of CVD under Notification No. 6/2002 and allowed the civil appeal. The relevant Paras 3 to 8 of the said Supreme Court's order is reproduced as under :- 3. Entry/Serial No. 122 in the Notification No. 6/2002 reads as under - S. No. Chapter or heading No. or subheading No. Description of goods Rate under the First Schedule Rate under the Second Schedule Condition No. 122 5402.10 5402.41 5402.49 5402.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi (Civil Appeal No. 2616 of 2001) = 2015-TIOL-23-SC-CUS, 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 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 the Tariff Act. The explanation to Section 3 has two limbs. The first limb clarifies that the duty chargeable under Section 3(1) would be the excise duty for the time being leviable on a like article if produced or manufactured in India. The condition precedent for levy of additional duty thus contemplated by the explanation deals with the situation where a like article is not so produced or manufactured‟. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 735 = 2009 (235) E.L.T. 214 (S.C.). In fact, in Lohia Sheets and Malwa Industries cases (supra), this Court was considering exemption notifications envisaging use of certain material within a factory and still held that an importer would be entitled to the benefit of the exemption notifications in view of Section 3 of the Tariff Act and the decisions in Hyderabad Industries and Thermal cases. As such, it is now settled that the rate of duty would be only that which an Indian manufacturer would pay under the Excise Act on a like Article. Therefore, the importer would be entitled to payment of concessional/reduced or nil rate of countervailing duty if any notification is issued providing exemption/remission of Excise duty for a like article if produced/manufactured in India. 16. We may mention that in the case of Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal Ors. - (2011) 1 SCC 236 = 2010 (260) E.L.T. 3 (S.C.), a three Judge Bench of this Court had raised certain doubts on the correctness of the principle contained in Thermax Private Limited (supra) as well as in J.K. Synthetics (supra) and referred the matter to a larger Bench. Reference order is rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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