TaxTMI 
TaxTMI 
2018 (8) TMI 1901
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.... The impugned order is hereby quashed. The refund application moved by the petitioner shall be decided on its merit, within ten weeks, in accordance with law. The writ petition is disposed of." 2. The reasons for making the order were not discussed. However, in the meanwhile, the order itself was issued inadvertently to the parties. In these circumstances, the writ petition was listed today for directions. 3. Learned Counsel for the parties reiterated their submission but at the same time agreed that the conclusions recorded were correct in the order dated 30-7-2018. The present order proposes to discuss the facts and reasons for the said conclusions. 4. In these writ proceedings, the petitioner seeks a....
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....ms of Notification No. 12/2012-C.E., dated 17-3-2012 (as amended from time to time). The benefit of concessional rate was available subject to fulfilment of Condition No. 16 of the Notification which provided that the assessee should not have taken credit in respect of the goods under the Cenvat Credit Rules, 2004 [hereafter "the Credit Rules"] in respect of the inputs and capital goods used in the manufacture of these goods. Before the law was declared by the Supreme Court in the case of SRF Limited (supra), the Revenue was consistently denying the benefit of the notification to assessees on the ground that no Cenvat credit on inputs and capital goods was admissible under the Credit Rules to the assessee for manufacturing of mobile phones ....
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....rtainment would be essential to determine the extent of CVD to which the importer would be entitled and the refund application were to be processed on the basis of the said principle. The demand of the CVD raised in the said cases was thus set aside. 7. It is stated that after the declaration of the law in SRF Limited (supra), in particular, the respondents have been giving the benefit of concessional rate of duty to others till the statutory amendment took place in Notification No. 12/2012 as held in order dated 28-11-2016 passed in C/51815 to 51874 and 51878 to 51899/2016 by CESTAT. The Petitioner complains that it has thus been subjected to discrimination. The petitioner states that since it merely imported the mobile phones and ....
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.... has been held that any money which is realized in excess of what is permissible in law would be a realization made outside the provisions of the Act. Thus, any amount paid in excess of what was payable is outside the ambit of law." 8. The respondent Customs authorities, who resist the present proceeding for refund, claim that in terms of Section 128 of the Customs Act, 1962, any person aggrieved by any decision or order passed under the Customs Act by an officer of Customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs (in this case, the Assistant Commissioner of Customs) may appeal to the Commissioner (Appeals). The order dated 3-2-2017 falls well within the ambit of these provisions but the peti....
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....rial No. 122 of Notification No. 6/2002-C.E., dated 1-3-2002. The Deputy Commissioner of Customs denied the benefit of the Notification on account of non-fulfilment of that condition that no Cenvat credit under Rule 3 or Rule 11 of the Credit Rules has been taken in respect of the inputs or capital goods used in the manufacture of Nylon Filament Yarn or Polypropylene Multifilament Yarn of 210 deniers with tolerance of 6 per cent. The importer appealed; the Supreme Court in its judgment relied on AIDEK (supra) as well as Thermax (supra). In AIDEK (supra), it was held that : "15. The ratio of the aforesaid judgment in Thermax Private Limited (supra) was relied upon by this Court in Hyderabad Industries Ltd. (supra) while interpr....
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....n 3 on the import of a manufactured or produced article the actual manufacture or production of a like article in India is not necessary. For quantification of additional duty in such a case, it has to be imagined that the article imported had been manufactured or produced in India and then to see what amount of excise duty was leviable thereon". 11. Based on the judgment in AIDEK (supra) and having regard to the facts of the case, the Supreme Court allowed the appeal in favour of the importer and held that it was entitled to exemption from payment of CVD in terms of the Notification. 12. There is no dispute about the applicability of SRF Ltd. (supra); indeed the Revenue's refrain during the hearing was that the amounts coul....