TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 159
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....s confirmed by the original authority vide order dated 14.11.2005. The Commissioner (Appeals) vide an order dated 10.04.2006 dismissed the appeal under Section 129 E of the Customs Act, 1962, filed by the appellants for non-compliance of Interim Order directing payment of pre-deposit. On further appeal before the Tribunal, by Final Order No. 869/2006 dated 13.09.2006, Tribunal remanded the matter back for denovo consideration by the Commissioner (Appeals) on merits. In the denovo proceedings the Commissioner (Appeals) vide the impugned order dated 12.03.2007 held that the appellants are not eligible for the benefit of Notification No. 29/2004-CE, hence, upheld the order of the lower authority. Aggrieved, appellants are once again before this forum. 2.1 Appellant challenging the OIA dt. 12.03.2007 submits that the appellant imported Nylon Filament Yarn to manufacture yarn in India through a manufacturer who had facility to do so since appellant did not have such facility. In such circumstance, Notification No.29/04-CE dt. 9.7.2004 as amended by Notification No.10/05-CE dt.1.3.2005 governed its imports in terms of Sl.No.5A of the Table appended to the notification which reads as und....
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....e of duty extended under notification No. 29/2004-CE are satisfied and hence the benefit thereof will translate to them require to pay additional duty of customs @ 8% only. 3. To the above submission of appellant, Revenue's objection is that ld. Commissioner (Appeals) having examined the condition prescribed in the notification thoroughly held that the appellant did not fulfill the conditions of the notification for which it is not entitled to the grant thereof. The authority has properly understood that the notification was issued under Central Excise law and the goods manufactured in a factory not belonging to the manufacturer-appellant, is liable to excise duty @ 8%. Such concessional rate of duty prescribed by the notification is not available to the importer who has not subjected its imported goods to "manufacture". Ld. Commissioner (Appeals) has therefore correctly recorded in para-11 of his order that benefit is only available in respect of the manufactured goods but not the raw material imported. The grant of benefit of the notification having confined its scope to central excise duty, appellant is absurdly praying for extending the concession to the additional duty of....
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....ses benefit from export incentives like duty drawback in the concerned country of export. The important factum, however, is that the additional duty of customs has to be equal to the excise duty for the time being leviable. 4.5 With this understanding, we shall take up the Notification 29/2004-CE, Sl.No. 5A. As seen from the relevant portion reproduced under para-2 as above, the said notification emphasizes the following conditionalities for eligibility:- (i) The input filament yarn should be procured from outside. (ii) Yarns so procured should be subjected to any processby the manufacturer (iii) Such manufacturer does not have the facility (for manufacture of filament yarn of chapter 54) (iv) The resultant goods emerging out of the process so subjected to will also fall under Chapter 54. 4.6 With regard to the requirement that the filament yarn should be procured from outside, neither the said notification nor the Central Excise Act or Rules define the words procured from outside. This being so, the commonly understood connotation of the word, in its most literal sense, will require to be adopted and understood accordingly. There is no requirement in the notification tha....
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....re of the considered opinion that filament yarn imported by the appellant will have to necessarily pay the additional duty of customs equal to the merit rate of central excise duty, and not, the reduced rate of excise duty extended vide notificationNo.29/2004-CE as amended. 4.13 In arriving at the conclusion, we draw sustenance on the ratio laid down by the Honble Supreme Court in the case of Thermax Pvt. Ltd. Vs. Collector of Customs - 1992 (61) ELT 352 (S.C), held that CVD will be equal to excise duty for the time being leviable on a like article if produced or manufacture in India. The Honble Apex Court went on to further observe that we have to forget that the goods are imported and imagine that the importer had manufactured the goods in India and determine the amount of excise duty that he would have been called to pay in that event. 4.14 The Honble Supreme Court in the case of Hyderabad Industries Vs. Union of India (supra), while following the ratio laid down in their earlier judgment in the case of Thermax Private Limited (supra) inter alia held as follows:- ".......To our mind the genesis of Section 3(1) of Customs Tariff Act has been brought out in the aforesaid obser....