TaxTMI 
TaxTMI 
2014 (11) TMI 530
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....on of Article 14 of Constitution of India. He held that homeopathy medicines manufactured in India and sold in the domestic market, attracts 1% CVD whereas, the imported homeopathy medicines attracts 5% of duty at the time of import thereof. Point of taxation under Section 5A of the Central Excise Act, 1944, is the removal of goods from factory which is similar to import of goods filing Bill of Entry for home consumption. Both are identical situations and there is no material difference between the two in sum and substance as well as nomenclature. Not granting uniform treatment in a like situation vitiates the right to equality principle guaranteed under Article 14 of the Constitution. Support was drawn by him from the case of K.T. Moopil Nair Vs. State of Kerala [AIR 1961 (SC) 552], wherein the Constitutional Bench of Hon'ble Supreme Court had examined the legality of the levy of land tax and its constitutionality. 2.2 Ld. Commissioner further held that the principles evolved in the above referred judgement have been consistently followed in various judicial decisions and the core issue in the present case is as to whether there is any discrimination of duty which sought to be ....
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....the Notification. Ld. commissioner (Appeals) interpreted section 3 of Customs Tariff Act, 1975 in a manner to grant undue advantage to the respondent disturbing the level playing to the domestic players. His interpretation resulted in granting exemption of duty to the extent of 4% towards Additional Customs Duty (ACD) imbalancing the level playing field and domestic manufacturers were adversely placed, which is contrary to law. Ld. commissioner (Appeals) in essence frustrated the spirit of the levy on imports. 4. Revenue's emphasis was that the decision of Apex Court in the case of Eagle Flask Industries Ltd. [2004 (171) ELT 296 (SC)] holds the field being a latest one subsequent to the decision in the case of Hyderabad Industries Ltd. [1999 (108) ELT 321 (SC)]. Repeatedly all the courts in this country beginning from Motiram Tolaram [1999 (112) ELT 749 (SC)] judgement have held that the assessee who claims benefit of a Notification has to satisfy the condition of that Notification strictly. To avail the concession, Respondent failed to discharge burden of proof and failing to show that the imported goods were manufactured from inputs on which no credit of duty paid on raw mater....
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....ervice Tax Department nor with the Central Excise Department, the question of availing of the credit under the CENVAT Credit Rules, 2004 does not arise and for this Obvious Reason, the exemption benefit has to be extended. 6.3 It was further contention of the Respondent that as per the settled position of law that parity has to be maintained between the imported goods and indigenously manufactured goods for the purpose of charging of duty on the imported goods and granting exemption. Section 3 of the Customs Tariff Act, 1975 and Section 4 of the Central Excise Act, 1994 are analogous to each other. Any discrimination between the imported goods and domestically manufactured goods while charging additional duty and granting exemption without any object would be treated as unreasonable classification and action of the State shall be arbitrary in the context of Article 14 of the Constitution of India, 1950. 6.4 The Respondent further argues that the decision of the ld. Original Authority was based on the ratio of the judicial decision in the case of M/s. Priyesh Chemicals and Metals Vs. CCE, Bangalore [120 ELT 259 (Tri.-LB)] and the said decision has been clarified by subsequen....
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....nd reason as well as logic for which Revenues appeal should be dismissed. 6.7 Respondent contended that the issue of grant of exemption of customs duty to the extent of 4% on the imported goods from levy of ACD is nothing new. Such benefit was all along available to the importers by judgments of different courts as well as Tribunal. Respondents prayer was therefore not to interfere with the order of ld. commissioner (Appeals) but to uphold the same. 7. Heard both sides and perused record. 8.1 The short point for decision in this batch of appeals preferred by Revenue is whether homeopathic medicine imported by the Respondent is liable to Additional Customs Duty (ACD) @ 5% or 1% and 2% as the case may be of the value of import in terms of Notification No.1/2011/-CE dated 01.03.2011 during the material period. 8.2 The respondent imported homeopathic medicines through different Bills of Entry during different period from 12.01.2011 to 25.09.2012 against which it was directed to pay ACD @ 5% in terms of the Notification No.2/2011-CE, dated 1.3.2011 read with Notification No.1/2011-CE, dated 1.3.2011 by virtue of the provision contained in Section 3(1) of the 1975 Act. For ....
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....y, ACD equal to central excise duty on the like goods if manufactured in India is leviable on the imported goods so as to equate both the goods and make competitive in domestic market providing a level playing field to both, i.e., indigenously manufactured goods and imported goods. Section 3(1) of Customs Tariff Act, 1975 in so far as that is relevant to the present controversy reads as under:- SECTION 3. Levy of additional duty equal to excise duty, sales tax, local taxes and other charges. - (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article : Provided that in case of any alcoholic liquor for human consumption imported into India, the Central Government may, by notification in the Official Gazette, specify the rate of additional duty having regar....
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.... goods exported. Such practice is followed by member countries as mandate. Therefore, the goods entering into India from outside India do not come with local tax, levies or duty component therein, whereas like goods indigenously manufactured suffer from excise duty in India @ 5% ad velorem availing input tax credit. 8.6 To the stage of availing input tax credit on manufacture, both foreign goods and Indian goods are in par. But situation differs when the goods are meant for export duty free from exporting countries. The goods manufactured in India suffer excise duty when cleared for domestic consumption. Burden of excise duty @ 5% is borne by such goods. Therefore, to bring both the goods to par, imported goods are prescribed by section 3(1) of 1975 Act to suffer burden of ACD in addition to basic customs duty. This trade remedy measure prescribed by law is to bring equilibrium to both the goods so as to ensure fair trade and make them competitive. Without ACD, the foreign goods would be cheaper by 4% or 3% as the case may be (5% - 1% or 2%) and indigenously manufactured goods bearing duty burden of 5% shall go out of market. Levy of ACD in addition to basic customs duty is a me....
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.... same issue was the subject matter of the Tribunal in the appellants own case in the case of M/s. Howrah Ispat v. CC(P), West Bengal reported in 2003 (160 ) E.L.T. 1022. The appellants have not gone in further appeal, but have accepted the said decision. Moreover, the Tribunal in that case followed the decision of the 5 Members Larger Bench in the case of Priyesh Chemicals (supra), which also has not been appealed against. The cited decisions of the Hon'ble Supreme Court were very much available to the appellants, but these were not cited. Moreover, we find that the learned Advocate appearing for the department brings to our notice that a 3 Judges Bench of the Hon'ble Supreme Court in the case of CCE, Navi Mumbai v. Amar Bitumen & Allied Products Pvt. Ltd. - 2006 (202) E.L.T. 213 (S.C.) has held that when the Order of the Tribunal on the same question is not appealed against, the issue attains finality and questioning its correctness later on, is not permissible. 8.9 The Board circular relied by Revenue subscribes to the aforesaid proposition of law. In view of the mandate of the law that the goods imported shall be treated as like article, produced and manufactured in In....