TaxTMI 
TaxTMI 
2015 (11) TMI 498
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.... notification and paid duty and cleared the goods. Subsequently, the appellant preferred appeal against Bill of Entry claiming CVD under Notification 12/2012-CE dt. 17.3.2012 chargeable @ 1%. The Commissioner (Appeals) after following the principles of natural justice passed the impugned order denying the notification No.12/2012 claimed by the appellant and upheld the OIO. Hence the present appeal. 3. It is seen that appellant sought for early hearing of appeal and the same was dismissed vide Misc.Order No.42647/2013 dt. 7.11.2013. Against MISC order of this Tribunal, the appellant preferred C.M.A before the Hon'ble High Court of Madras and the Hon'ble High Court in their order dt. 25.2.2014 in C.M.A. No.243/2014 directed the Tribunal to dispose of appeal on merits within a period of 4 months from the date of appointment of second Member of the Tribunal. With due compliance of Hon'ble High Court order, appeal was listed for hearing on 1.7.2014 where the advocate sought for time. Subsequently, again it was listed on 23.10.2014, 4.2.2015, 22.4.2015, 13.7.2015 and 28.9.2015. In all these occasions, the advocate repeatedly sought for adjournment. Finally the matter was l....
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....ies in the notifications as under :- Notification: 2/2011-CE dt 1.3.2011 as amended by Notfn 19/12-CE dt. 17.3.2012 and Notfn 20/2012-CE dt. 19.3.2012 Effective rate of duty of 5% on specified goods In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the excisable goods of the description specified in column (3) of the Table below and falling under Chapter, heading, sub-heading or tariff item of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), specified in corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon under the said Central Excise Act, as is in excess of the amount calculated at the rate of 6% ad valorem : TABLE S.No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of the excisable goods (1) (2) (3) 48 7113 Articles of jewellery Notification: 12/2012-C.E. dated 17-Mar-2012 Exemption and effective rates of duty for specified goods of Chapters 1....
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....tion and the conditions have not been fulfilled by the appellant at the time of import. In this regard, reliance is placed on the Supreme Court decision in the case of SRF Ltd. Vs CC Chennai and ITC Ltd. Vs CC New Delhi 2015-TIOL-74-SC-CUS. By relying Hon'ble Supreme Court's judgement (supra), this Tribunal in a batch of appeals in the case of CC Chennai Vs Enterprises International Ltd. (supra) on an identical issue of CVD exemption allowed and rejected the Revenue appeals and upheld the impugned orders. The relevant paragraphs of the Tribunal's order are reproduced below :- "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) = 2008-TIOL-2349-CESTAT-M....
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....ision in the case of Motiram Tolaram Vs UOI (supra) and the Tribunal's Larger Bench decision in Priyesh Chemicals & Metals (supra). In this regard the Hon'ble Supreme Court in their recent order in the case of SRF Ltd. Vs CC Chennai (supra) held that the appellants are entitled to exemption from payment of CVD under Notification No.6/2002 and allowed the civil appeal. The relevant 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 polypropylenemultifilament yarn of 210 deniers with tolerance of 6 per cent. Nil - 20 5402.41 5402.49 5402.5 5402.59 5402.61 or 5402.69 4. As per the aforesaid entry, the rate of duty is nil. Condition No. 20 of thisNotification, 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 C....
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....port to the case of the assessee herein. In that case, the court noted that Section 3(1) of the Tariff Act provides for levy of an additional duty. The duty is, in other words, in addition to the customs duty leviable under Section 12 of the Customs Act read with Section 2 of the Tariff Act. The explanation to Section 3 has two limbs. The first limb clarifies that the duty chargeable under Section 3(1) would be the excise duty for the time 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....
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....duty would be only that which an Indian manufacturer would pay under the Excise Act on a like Article. Therefore, the importer would be entitled to payment of concessional/reduced or nil rate of countervailing duty if any notification is issued providing exemption/remission of Excise duty for a like article if produced/manufactured in India. 16. We may mention that in the case of Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal & Ors. - (2011) 1 SCC 236 = 2010 (260) E.L.T. 3 (S.C.) = 2010-TIOL-95-SC-CX-CB, 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.) = 2005-TIOL-126-SC-CX. 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,....