TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 191
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....ssment order passed on the Bill of Entry claiming benefit of CVD exemption under said Notification. The Commissioner (Appeals) allowed the CVD exemption under the said notification and set aside the assessment order and allowed the appeals with consequential relief. LAA in his order relied various Tribunal's decisions and this Tribunal's Division Bench order in the case of Prashray Overseas Pvt. Ltd. Vs CC Chennai - 2008 (232) ELT 63 (Tri.-Chen) and Prashray Overeseas Pvt. Ltd. Vs CC Chennai- 2009 (235) ELT 300 (Tri.-Chennai). The department had reviewed all the orders and filed the present appeals against granting CVD exemption benefit. 3. Heard both sides. Ld. Advocate Dr.S.Krishnanandh represented for M/s.Sun Star International and M/s.Elegant Fabric. Ms.Sridevi represented for M/s.Enterprises International Ltd. and Shri Selvakumar, Advocate appeared for appellants as at Sl.No.64 to 66. 4. Ld. A.R. Shri M. Rammohan Rao, Jt. Commissioner appeared for the Revenue and reiterated the grounds of appeal which is reproduced as under :- (a) The Commissioner (Appeals)'s order is contrary to the Board's circular No.37/2001 dt. 18.6.2001 clarifying that the imported good....
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....terpreting the terms of exemption notification was not before the Hon'ble Supreme Court in the case of Hyderabad Industries. He further submits that apex court decision in SRF case is in direct conflict with the Supreme Court decision in the case of Motiram Tolaram - 1999 (12) ELT 749 (SC). In the case of Motiram Tolaram the apex court has laid down the law relating to complying with a condition precedent to an excise notification in case of an import. That was not brought to the notice of the Hon'ble Supreme Court in SRF case. He further submits that Motiram Toleram case was again approved by the constitutional Bench in the case of Dhiren Chemical Industries - 2002 (139) ELT 3 (SC). He relied on the following citations :- (i) Priyesh Chemicals & Metals Vs CCE Bangalore 2000 (120) ELT 259 (Tri.-LB) (ii) Motiram Tolaram Vs UOI 1999 (112) ELT 749 (SC) (iii) Dhiren Chemical Industries 2002 (139) ELT 3 (SC) 6. On the other hand, Ld.Advocate representing counsel for appellants submits that they are eligible to the Notification No.30/2004 dt. 9.7.2004. He further submits that proviso to the notification stipulates the condition that nothing contained in the notification shall....
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.... (iv) Mapsa Tapes Pvt. Ltd. Vs CC Delhi 2009 (247) ELT 188 (Tri.-Del.) (v) CC Nhava Sheva Vs Ashima Dyecot Ltd. 2011 (267) ELT 122 (Tri.-Mumbai) 9. Ld. A.R countered the arguments and submitted that even though raw material raw silk/silk yarn is charged at Nil rate of duty, the manufacturer producing of yarn can avail cenvat credit on any goods during the production of silk yarn. The Hon'ble Supreme Court has not gone into any discussion on the Explanation to Section 3 of Customs Tariff Act. He further submits that Hon'ble Supreme Court case in the case of Thermax decision which is relied on in SRF case only lays down the principal whereas in the case of Motiram Tolaram the Supreme Court has discussed all the conditions of the notification. 10. Ld. Advocate in his rejoinder, relied on para-13 of the Supreme Court in AIDEK Tourism case wherein the Hon'ble Supreme Court has clearly discussed the Explanation to Section 3 of the Customs Tariff Act. He also referred to para 15 & 16 of the order wherein the apex court has considered the decision of Motiram Tolaram Vs UOI (supra). 11. We have carefully considered the submissions of both sides and also perused the records,....
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....rt relying in the case of Union of India Vs Kamlakshi Finance Corporation Ltd. - 1991 (55) ELT 433 (SC), 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-CE dt. 9.7.2004 at Sl.No.5 of table exempts excise duty on silk yarn and silk fabrics falling under Chapter 54.01 to 54.07. The proviso to the notification stipulates a condition that "nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs or capital goods has been taken under the provisions of the CCR 2002." This very issue was discussed in the case of Prashray Overseas Pvt. Ltd. [2009 (235) ELT 300 (Tri.-Chennai). The relevant paragraph-3 of the order is reproduced as under :- "3. We find that no Central Excise duty is payable on raw silk produced in India. Yarn manufactured from such silk is also exempt under Notification No.30/2004 as no credit availed input is used to manufacture silk yarn. Therefore indigenous silk fabrics manufactured f....
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....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 sub-heading No. Description of goods Rate under the First Schedule Rate under the Second Schedule Condition No. 122 5402.10 Nylon filament yarn or polypropylene multifilament yarn of 210 deniers with tolerance of 6 per cent. Nil - 20 5402.41 5402.49 5402.51 5402.59 5402.61 or 5402.69 4. As per the aforesaid entry, the rate of duty is nil. Condition No. 20 of this Notification, which was relied upon by the authorities below in denying the exemption from payment of CVD, is to the following effect: "20. If no credit under rule 3 or rule 11 of the CENVAT Credit Rules, 2002, has been taken in respect of the inputs or capital goods used in the manufacture of these goods." 5. The aforesaid condition is to the effect that the importer should not have availed credit under rule 3 or rule 11 of the CENVAT Credit Rules, 2002, in respect of the capital goods used for the manufacture of these goods. 6. In the present case, admitted position is that no such CENVAT credit is avai....
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....e 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 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 an article can likewise be manufactured or produced in India. For the purpose of attracting additional duty under Section 3 on the import of a manufactured or produced article the actual manufacture or production of a like article in India is not necessary. For quantification of additional duty in such a case, it has to be imagined that the article imported had been manufactured or produced in India....
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.....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 reported as (2005) 8 SCC 164 = 2005 (188) E.L.T. 353 (S.C.). The Constitution Bench decided the said case, which is reported as (2011) 1 SCC 236. From the reading of para 39 to 41 of the said judgment it becomes clear that though these cases were held not applicable to the fact situation and were distinguished, the Court did not say that the aforesaid judgments were incorrectly decided. In fact, by distinguishing the ratio of the said cases, the Constitution Bench impliedly gave its imprimatur to the principle laid down in the aforesaid judgments." 16. In view of the above ruling by Apex Court, we are unable to accept the Revenue's plea that the Apex Court decision of SRF Ltd. and M/s.Motiram Tolaram are in direct conflict. Hon'ble Supreme Court has clearly considered all the previous decisions of Apex Court including the decision in the case of Motoram Tolaram Vs UOI (supra). Therefore, the revenue relying on the above ....