2016 (2) TMI 11
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....e fact of the case is that appellant filed Bill of Entry No. 501 dated 4/3/2003 for import of 'PVC Coated cloth of 68D/68D' under CTH 5903.10 and goods were assessed at the rate 25% BD+16% CVD + 4% SAD and cleared for home consumption after payment of duty. In the second appeal, Bill of Entry Nos. 926570 dated 29/11/2003 and 093334 dated 15/12/2003 filed for import of 'Polypropylene Non-Woven Fabric' under CTH 5603.9200 and the goods were assessed to duty at the rate 25% BD + 16% CVD + 4% SAD and cleared for home consumption after payment of duty. Appellant being aggrieved by the order of assessment filed appeals against the assessed Bill of Entries on the ground that goods were not subjected to additional Custom duty equiva....
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....ion (5) provides that provision of Section 3A is not applicable to any article which is chargeable to additional duty levies under subsection (1) of section of additional duty of Excise (GSI) Act, 1957. He submits that in the subsection even though duty is not paid or payable by virtue of exemption notification but it is otherwise chargeable under the Act, 1957 subsection (5) of Section 3A is applicable and accordingly SAD is not chargeable. He relied upon judgments in case of Hind Rubber Factory vs. Union of India [1990 (48) ELT 363 (P&H)] wherein it was held that even if good is exempted the excisable goods shall not ceased to excisable goods and applying the same logic even though goods is exempted from additional duty of excise (GSI) bu....
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....virtue of exemption notification additional excise duty is not chargeable, therefore the fact and law point involved in the cited judgments is altogether different from the facts and law point of the present case. Hence judgment is not applicable. 5. We have carefully considered the submissions made by both the sides. 6. We find that Appeal No. C/1090/04 relates to import of the goods falling under CTH 5603.9200 where SAD is undisputedly payable and the same was fairly conceded by the Ld. Counsel. Hence appeal no. C/1090/09 is dismissed. As regard the appeal No. C/1089/04, we find that the goods imported i.e. PVC Coated cloth of 68D/68D classified under CTH 5903.10. Goods of 5903.10 is scheduled in the first schedule to additional duties ....
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.... not chargeable by virtue of exemption notification even in subsection (5) also the term 'levied' and 'chargeable' were separately used that clearly shows that though additional duty of excise is levied under subsection (1) of Section3A of the Act 1957, but by virtue of notification it is not chargeable, therefore we are of the considered view that in the present case additional duty of Excise is not chargeable and therefore appellant will not get shelter of subsection (5) of Section 3A from levy of SAD as provided under Section 3A. It is also to be noted that the intention of subsection (5) is that any one duty, either additional duty of Excise (GSI) or special additional duty shall be payable, for this reason subsection (5....