TMI Blog2000 (5) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ctured in India. Domestic production of Zinc Ash was liable to Central Excise Duty under Chapter 26 of Central Excise Tariff subject to the exemption under notification 19/88 during the period of import. The appellants eligibility to this exemption is the subject matter of the present appeal. 2.The proviso to Notification No. 19/88 as amended by Notification No. 27/91, contained the following condition : "Provided that no credit of duty paid on the inputs, used in the manufacture of said goods, has been taken under Rule 56A or 57A of the Central Excise Rules, 1944." 3.The appellant's claim to the exemption was rejected on the ground that the goods did not satisfy the aforesaid condition. 3.1The appellant's claim was that, since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Thermax case (Supra) and the decision of Bombay High Court in the case of Ashok Traders (Supra). 4.When the case came up for hearing on 29-3-2000 before us none appeared for the appellant. However, they have filed written submission vide letter dated 18-3-2000 and prayed that the case may be decided after taking into account the written submission. Accordingly, we are deciding the case after hearing the ld. D.R. for the Revenue and perusing the written submission of the appellant. 5.As already stated the issue involved is the levy of additional customs duty on imported goods. The appellants do not contest dutiability of the goods to additional customs duty. They are only claiming that their import is not liable to the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they fulfilled the conditions stipulated in the exemption Notification. He has submitted that this position remains confirmed by the decision of the Supreme Court in Thermax case (Supra). He drew our attention in particular to the reference made by the CEGAT to South Regional Bench to the Thermax decision in its order. He pointed out that in the Thermax case also, benefit of central excise exemption was claimed on imported goods. The Supreme Court held that the exemption will be available only if importers met the conditions in the exemption Notification. In the facts of that case, the Central Excise exemption was available to Industrial Consumers of excisable goods and it was a requirement under the exemption that they should be in posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim the benefit of exemption. This is the law laid down by the Supreme Court in the Thermax case (supra) and the Bombay High Court in the Ashok Traders case (Supra). We are in complete agreement with the Revenue on this issue. In the present case, the appellants are contending that they satisfied the condition stipulated in the Proviso to Notification No. 19/88 by stating that they had not availed themselves of Modvat credit on the inputs used in the manufacture of the imported consignment of Zinc Ash. This is not the correct understanding of the requirement of this notification. The exemption notification stipulates that "no credit of duty paid on the inputs used in the manufacture of said goods have been taken under Rule 56A or Rule 57A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication as it is obvious that imported goods cannot satisfy the condition relating to payment of excise duty on raw-material. We read the relevant observation in the judgment :- "7. .................The submission was advanced by urging that the rate of countervailing duty should be in accordance with the exemption Notification No. 302/79, dated December 4, 1979 issued by the Central Govt. in exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excises Rules, 1944....................... The perusal of the Notification indicates that in respect of high Density polyethylene the rate of duty prescribed is 27 per cent instead of normal duty of 42 per cent. This partial exemption from payment of duty is prescribed by the N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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