TMI Blog2023 (4) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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] and it was held that the assessee would be eligible for the benefit of notification. The Hon ble Apex Court opined that the benefit of notification cannot be denied if the condition is such that it is practically impossible to satisfy the condition - The decision of the Apex Court in the case of SRF Ltd. would be applicable. The jurisdictional High Court in the case of THE COMMISSIONER OF CUSTOMS (EXPORTS) VERSUS M/S. PRASHRAY OVERSEAS PRIVATE LIMITED, CUSTOMS EXCISE SERVICE TAX APPELLATE TRIBUNAL [ 2016 (5) TMI 1106 - MADRAS HIGH COURT] had analysed the issue after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s set aside by the Commissioner (Appeals) vide the order impugned herein and held that the respondent is eligible for the benefit of notification. Against such order, the department is now before the Tribunal. 3. Ld. A.R Ms. Anandalakshmi Ganeshram appeared for the department. She submitted that respondent is not eligible for the benefit of notification as they have not fulfilled the condition of the notification. There is a condition attached to the notification that the benefit would not be available if cenvat credit has been availed on the duty paid on inputs. In the present case, the respondent has not paid any duty on the inputs and has not availed cenvat credit When the inputs have not suffered duty, the benefit of Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .30/2004-CE dated 09.07.2004. Ld. A.R has stressed that the exemption granted under the notification is conditional in as much as there is a proviso in the notification which reads as under : Provided that nothing contained in this Notification shall apply to the goods in respect of which credit of duty vide Corrigendum F. No. 334/3/2004-TRU (PT.I), dated 9-7-2004 on inputs goods has been taken under the provisions of the Cenvat Credit Rules, 2002 . 6. It is argued by the A.R that the benefit of notification will be available only if the goods that are used as inputs in the products manufactured by him, have already suffered duty of excise and the assessee has not availed credit of such duty on the inputs under the provisions of Cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CEGAT has come to the conclusion that when the credit under the Cenvat Rules is not admissible to the appellant, question of fulfilling the aforesaid condition does not arise. In holding so, it followed the judgment of the Bombay High Court in the case of Ashok Traders v. Union of India [1987 (32) E.L.T. 262], 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike 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 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 India. As per the explanation if an imported article is one which has been manufactured or produced, then it must be presumed, for the purpose of Section 3(1), that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the manufacturer of such goods (and not the buyer of such goods), under the provisions of Cenvat Credit Rules, 2004. 9. The jurisdictional High Court in the case of Prashray Overseas Pvt. Ltd. (supra) had analysed the issue after the date of amendment. In para-15, the Hon ble High Court also took notice of the fact that the review petition filed by department against the decision of the Supreme Court in SRF Ltd. is pending. The decision of the Hon ble jurisdictional High Court in the case of Prashray Overseas Pvt. Ltd. (supra) came to be passed on 28.03.2016. This Bench therefore in the assessee s own case had followed the said decision in the case of Prashray Overseas Pvt. Ltd. Vs CC (Sea), Chennai vide Final Order No.40231/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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