TaxTMI 
TaxTMI 
2017 (5) TMI 1324
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....ection 12 of the Rubber Act, 1947, the cess is levied as a duty of excise on all rubber produced in India, and it is to be collected by Rubber Board. Whereas, the additional Customs duty is leviable under Section 3(1) of Customs Tariff Act, 1975. This section authorizes for collection of duty equal to the Excise duty leviable on a like article if produced or manufactured in India. The Cess is levied only under Rubber Act, 1947 and is to be collected only by Rubber Board. Appellants were of the view that they are not liable to pay cess on imported rubber and hence filed refund applications. The adjudicating authority rejected the refund applications and the same was upheld by the Commissioner (Appeals). Hence this appeal. 2. The issue that poses for consideration in this case,is whether appellants are liable to pay at the time of import additional duty of customs under Section 3 (1) of Customs Tariff Act, 1975 equal to such duty of excise levied as cess under Rubber Act. 3. The said issue has a chequered history. The arguments put forward by both sides narrow down to the point whether the issue under consideration is covered by the judgement of Hon'ble Apex Court. On behalf of....
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....) equivalent to such cess is leviable on like goods imported. Later, as per Circular No.75/98 dated 08.10.1998 the Circular dated 30.06.1997 and 22.07.1997 were withdrawn. In view of this subsequent clarification from the Ministry, the Commissioner (Appeals) held that earlier decision of the Tribunal in MRF Ltd. (supra) was not applicable to the case. However, in appeal the Tribunal, held that the issue that was posing for consideration in the case was whether cess can be levied on imported rubber and not levy of CVD and therefore set aside the demand by following the judgment in MRF Ltd.(supra). It can therefore be discerned that while the adjudication of the Commissioner was on the precise issue of Additional duty of Customs (CVD) under Section 3 (1) of CTA, 1975 equal to cess levied under Rubber Act, 1947 (issue framed in para 5 (b) above), in appeal however, the Tribunal analysed the issue framed in para 5 (a) above. 6.3 At this juncture, for better appreciation, the said Circulars are noticed as under:- "F. No. 345/31/97-TRU Government of India Ministry of Finance Department of Revenue North Block, New Delhi 2^nd September, 1997 To All Co....
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....f such cess (collected as duty of excise) is leviable on similar imported goods. 3. In view of the above, wherever under an Act, cess is levaible as duty of excise on goods produced/manufactured in India, then on similar imported goods an amount equivalent to the amount of cess leviable is levied as additional duty of Customs. For this purpose, what is required to be considered is whether under the relevant Act enabling levy of cess, cess is levied as a duty of excise. If the enabling legislation provides for levy and collection of cess as a duty of excise, then on imports corresponding amount of additional duty of customs becomes payable under Section 3 of the Customs Tariff Act, 1975. Accordingly, even though the Rubber Act, 1947 may not provide for collection of cess on imports, additional duty of Customs is payable on import of rubber by virtue of Section 3 ibid. 4. This issues with the approval of Chairman, CBEC. Yours faithfully, Sd/- Under Secretary to the Govt. of India. [Emphasis added] "Circular : 75/98-Cus., dated 8 Oct. 1998 Xxxx Cess on imported Rubber Circular No. 75/98-Cus., dated 8-10-98 Government of India Ministry of Fi....
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..... London Rubber Co. case, to set aside the demand has followed judgments in the case of M.M Rubber Co. Ltd. and Vikrant TyresLtd. and TTK-LIG Ltd. which had been disposed of by different benches of the Tribunal as above. Relevant paragraph of Tribunal's order in London Rubber Co. India Ltd is quoted as under : "7. We have carefully considered the submissions made by both sides and notice that this Bench in the case of TTK LIG Ltd. has clearly held in the light of the earlier Tribunal order rendered in the case of M.M. Rubber Co. Ltd. by Final Order No.2547/98 dated 8.12.98 that CESS is not leviable under Section 12 of the Rubber Act in terms of M.F. (D.R.) circular dated 22.7.97 on the imported rubber. The said circular was withdrawn by another circular dated 8.10.98. A similar order was passed by the Bangalore Bench in the case of Vikrant Tyres Ltd. The matter had been referred to the Larger Bench and the Larger Bench headed by the Hon'ble President clearly held that the Apex Court had dismissed the revenue appeal filed against the order of the Vikrant Tyres and therefore the issue is concluded. The revenue again filed an application seeking modification/clarification....
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....pugned order following the ratio of its earlier decision in the case of TTK Ltd. Vs. Collector [1999 (111 E.L.T. 52] had held that cess under Section 12 of the Rubber Act read with Section 3 of the Customs Tariff Act, 1975 is not leviable on the imported rubber." "2004(165) E.L.T. A212 (SC) Cess not leviable on imported rubber The Supreme Court Bench comprising Hon'ble Mr. Justice S.N. Variava and Hon'ble Mr. Justice H.K. Sema on 13-10-2003 dismissed the I.A. Nos.31-45 in Civil Appeal Nos. 1460-1474 of 2003 filed by Commissioner of Customs, Chennai against the CEGAT Order No.1761/2001-SRB, dated 29-11-2001(Vikrant Tyres Ltd. vs. Commissioner). While dismissing the I.As., the Supreme Court passed the following order:- "We see no reason to modify/clarify our order dated 17th February, 2003 [2003 (157) E.L.T. A134 (S.C.)]. I.A. Nos.31-45 stands dismissed. The Appellate Tribunal in its impugned order had held that cess under Section 12 of the Rubber Act read with Section 3 of Customs Tariff Act, 1975 is not leviable on the imported rubber as held by Tribunal earlier in the case of TTK Ltd. v. Collector [1999(111) E.L.T.52]. ....
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.... (b) Whether the claim of the Respondent for refund of duty is barred by the doctrine of unjust enrichment 10. Together with this, in para-C of the grounds of appeal, the Revenue has stated as under: "C. That the Hon'ble Tribunal failed to appreciate the provisions of Section 3(1) of the Customs Tariff Act, 1975 which reads as, "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". The Explanation to the said Section 3(1) further says that the expression the excise duty for the time being leviable on a like article if produced or manufactured in Indiameans "the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India". The Hon'ble Tribunal failed to appreciate that Cess leviable on rubb....
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....was considered in the case of M.M. Rubber and Vikrant Tyres is not correct. It may be true that Larger Bench has not referred to the judgements of London Rubber Co.India Ltd. But at the cost of repetition, it has to be stated that the order impugned in the S.L.P in respect of M/s.London Rubber Co. Ltd. was rendered by Tribunal following the decision in the case of M.M. Rubber Ltd. and Vikrant Tyres, and the period being prior to 08.10.1998. 16. The confusion arose thereafter when the Tribunal, Chennai in a subsequent appeal filed by Vikrant TyresLtd. Vs. CC Chennai - 2007 (218) ELT 219 (Tri.-Chennai) did not follow the above judgement passed by the Larger Bench. Instead, the then Bench followed judgement passed in M.M. Rubber and Vikrant Tyres. The same Bench took a similar view in another appeal filed by TTK-LIG Ltd.Vs CC Chennai- 2008 (231) ELT 452 (Tri.-Chennai). 17. Though Revenue filed appeal against the said order passed by Tribunal in above case of Vikrant Tyres Ltd. Vs. CC Chennai 2007 (218) ELT 219 (Tri.-Chennai), the same was dismissed by the Hon'ble Apex Court on the ground of delay. 18. The earlier Bench of the Tribunal in para-2,3 of the above stated orders in....
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.... imported rubber under Section 3 of the Customs Tariff Act. Hence, the Hon'ble Supreme Court remanded the matter to us for considering the question whether the refund claim of M/s. M.M. Rubber Company is hit by the bar of unjust enrichment. The Hon'ble Supreme Courts order did not discuss the substantive issue in so many words. But, by remanding the case to the Tribunal for considering the refund claim of the assessee, their lordships were approving the view taken by this Bench on the said issue in the case of M.M. Rubber Co. 3. The Apex Court's orders in the cases of Vikrant Tyres Ltd. and M.M. Rubber Co. were, apparently, not cited before the Tribunals Larger Bench. We have got to follow the view taken by the Apex Court in preference to that taken by the Tribunals Larger Bench. In the impugned order, learned Commissioner (Appeals) rejected the appellants claim for refund of an amount of Cess paid on imported rubber towards a demand raised under Section 3 of the Customs Tariff Act, by holding the view that the party was liable to pay such duty. Hence there was no occasion for the appellate authority to enter into any enquiry on the aspects of time-bar and unjust enric....
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....ai) was also appealed before the Hon'ble Apex Court. The said appeal was dismissed on the ground of monetary limit leaving the issues open as reported in 2012 (277) ELT A85 (SC). The said para is reproduced as under: Cess Rubber - Cess Whether Cess - leviable on imported natural rubber latex The Supreme Court Bench comprising Hon'ble Mr. Justice S.H. Kapadia and Hon'ble Mr. Justice Aftab Alam on 14-5-2009 dismissed the Civil Appeal No.4000 of 2009 filed by Commissioner of Customs, Chennai against CESTAT Final Order No.716/2008, dated 17-7-2008 as reported in 2008 (231) E.L.T. 452 (Tri.- Chennai) (TTK-LIG Ltd. v. Commissioner). While dismissing the appeal, the Supreme Court passed the following order : "Delay condoned. Since the amount involved is only Rs. 80,000/-, keeping the question of law open, Civil Appeal is dismissed." The Appellate Tribunal in its impugned order had held that demand on imported rubber under Section 3 of Customs Tariff Act, 1975 is not sustainable. [Commissioner v. TTK-LIG Ltd. - 2012 (277) E.L.T. A85 (S.C.)]" (emphasis supplied) We therefore are able to see that merely because the appeals fil....