TMI Blog2005 (8) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... has instructions not to press this appeal. It is dismissed as such". This order is pointed out from 2003 (157) E.L.T. A134. It is also pointed out by the learned Counsel for the appellants that an application was made for modification of the said order dated 17-2-2003 by the Commissioner of Customs, Chennai in the said group of appeals which was dismissed on 13-10-2003 by observing that there was no reason to modify/clarify the order dated 17-2-2003. It appears that the application for clarification of the said order was made, as per the copy placed on record, for modifying the order of dismissal on the ground that it was submitted before the Hon'ble Supreme Court that there was delay of 357 days in filing the appeal and as no satisfactory ground was explained in the application for condonation of delay, the Court was pleased to dismiss the appeal on the ground of delay (para 4 of the application). It is stated in paragraph 2 of the application that the appeal raised an important question of law regarding the leviability of additional duty of Customs on the imported rubber under Section 3 of the Customs Tariff Act equal to the cess collected as excise duty under Section 12 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of other assessees without just cause. (B) The decision of the Supreme Court in Commissioner of Central Excise, Calcutta v. Suntrack Electronics (P) Ltd., 2003 (156) E.L.T. 163 (S.C.), was cited to point out that in a case where the Tribunal had relied on its earlier order which the Revenue had not chosen to challenge, the Supreme Court has held that it was not inclined to entertain the appeal. (C) The decision of this Tribunal in Vikrant Tyres v. Commissioner of Customs rendered in Appeal No. C/1137 to 1150/98 on 29-11-2001, was cited to point out that the very issue that was involved in the present case was decided in favour of the assessee by following the earlier decision of the Tribunal in TTK Ltd. v. CC, Chennai reported in 1999 (111) E.L.T. 52. (D) The decisions of this Tribunal in CEAT Ltd. v. Commissioner of Customs, Cochin reported in 2001 (46) RLT 551, and in Vikrant Tyres Ltd. v. CC, Madras - 2000 (36) RLT 577, were also cited to point out that this very issue was decided in favour of the assessee by following the earlier decision in MRF Ltd. v. Commissioner of Customs, Madras reported in 1997 (96) E.L.T. 198 and TTK Ltd., supra. (E) The de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly indicate that there was no decision of Hon'ble the Supreme Court on the merits of the issue involved. The dismissal of that appeal did not take away the jurisdiction of this Tribunal to decide the issue which was referred and was pending before the Larger Bench. 6. There is a serious question involved in these matters as to whether the earlier decision of the Tribunal in MRF Ltd. v. Commissioner of Customs reported in 1997 (96) E.L.T. 198 on the basis of which all subsequent decisions were rendered, laid down the correct legal position. In MRF Ltd., the Tribunal on the basis of the clarification as given by the Ministry of Finance on the Ministry of Commerce letter, came to the conclusion that the cess demanded (under Section 3 of the Tariff Act by way of additional duty payable with reference to cess under Section 12 of the Rubber Act, 1947) should not have been levied on the imported rubber. The Division Bench of this Tribunal which had referred the above question to the Larger Bench, had given the following reasons for the reference : - "8. The impugned demand of the Revenue is one of additional duty of customs (CVD) on imported rubber, which is purportedly to the quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll Customs/Central Excise Commissionerates in the country, wherein it was clarified that CESS was not to be levied under Section 12 of the Rubber Act on imported rubber. The Bench held the circular to be binding on Customs authorities and directed that no CESS be levied on imported rubber. We are at a loss to understand as to why such a clarification by Government was called for under Section 12 of the Rubber Act, 1947 to the Customs authorities and also, with great respect, as to why the clarification was held to be binding on Customs authorities. The authority to levy, assess and collect CESS on rubber produced in India is, exclusively, the Rubber Board under Section 12 of the Rubber Act. 10. Should the Governmental clarification and the orders of the Bench based on it be construed to mean that, as no CESS is leviable on imported rubber, no CVD will be leviable on it? Our doubt gets strengthened in the instant case on account of the fact that the demand is not one of CESS simplicitor but 'CESS as additional duty of customs' vide the Assistant Commissioner's order-in-original. Ld. DR has eloquently argued before us today that this is a demand of additional duty of customs (CVD) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, under that provision. There was no reference to additional duty payable under Section 3 of the Customs Tariff Act, 1975. The letter dated 30-6-97 was issued to clarify that only rubber produced in India would be subjected to the cess under Section 12 of the Rubber Act, 1947. The Ministry of Finance letter dated 22-7-97 also refers in paragraph 2, to the fact that the matter was taken up with the Ministry of Commerce, that had clarified that under Section 12 of the Rubber Act, 1947 cess was levied on rubber produced in India and not on rubber imported. These two clarifications cannot be construed to mean that no additional duty was payable in respect of the imported rubber under Section 3 of the Tariff Act. These orders had nothing to do with any additional duty payable under Section 3 of the Tariff Act on the imported rubber. If at all, these clarifications would show that the like product i.e. rubber produced in India was subjected to excise duty in India, and therefore, additional duty would be payable on the imported rubber under Section 3 of the Tariff Act. It, therefore, appears to us that the earlier reference was fully justified and mere dismissal of an appeal, as not pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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