2018 (6) TMI 735

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....led exemption from BCD in terms of Notification No.26/2000. The department was of the view that the respondents are not eligible for concessional CVD under Notification No.1/2011-CE dated 1.3.2011 as the conditions have not been followed. The respondents thereafter paid the concessional CVD under protest and filed appeal before Commissioner (Appeals). Vide orders impugned herein, the Commissioner (Appeals) directed the lower authority to reassess the Bills of Entry with concessional rate of duty in accordance with the decision of the Hon'ble Supreme Court in the case of SRF Ltd. - 2015 (318) ELT 607 (SC). Aggrieved by this order, department has filed the above appeals along with the stay applications. 2. At the time of hearing, the ld. A....

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....nder the Cenvat Rules is not admissible to the appellant, question of fulfilling the aforesaid condition does not arise. In holding so, it followed the judgment of the Bombay High Court in the case of 'Ashok Traders v. Union of India' [1987 (32) E.L.T. 262], wherein the Bombay High Court had held that "it is impossible to imagine a case where in respect of raw nephtha used in HDPE in the foreign country, Central Excise duty leviable under the Indian Law can be levied or paid." Thus, the CEGAT found that only those conditions could be satisfied which were possible of satisfaction and the condition which was not possible of satisfaction had to be treated as not satisfied. 7. We are of the opinion that the aforesaid reasoning is no longer g....

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....he 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 produce....