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2023 (10) TMI 1469
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....16 2079449 30.07.2015 2. C/40578/16 HLG Trading 2079071 30.07.2015 3. C/40578/16 HLG Trading 2079080 30.07.2015 4. C/40578/16 HLG Trading 10415 31.07.2015 5. C/40578/16 HLG Trading 10419 31.07.2015 6. C/40578/16 HLG Trading 10420 31.07.2015 7. C/40578/16 HLG Trading 10421 31.07.2015 8. C/40578/16 HLG Trading 2246791 14.08.2015 9. C/40578/16 HLG Trading 2247668 14.08.2015 10. C/40578/16 HLG Trading 2286708 18.08.2015 11. C/40096/17 Aditya International Ltd. Order-in-Appeal C.Cus.-I No. 133 & 134/2016 dated 29.02.2016 2349159 24.08.2015 12. C/41828/17 Aditya International Ltd. 2340218 24.08.2015 2.1 Brief facts which are relevant for our consideration are that the assessees are engaged in the business of wholesale trading of polyester spun yarn, blankets, fabric, knit fabrics, etc., covered under Chapters 50 to 63 of the Customs Tariff Act, 1975 / Central Excise Tariff Act, 1985, imported the same through Chennai Sea Port and also claimed the benefit of Notification No. 30/2004-C.E. dated 09.07.2004, as amended by Notification No. 34/2015-C.E. dated 17.07.2015 and Notification No. 37/2015-C.E. dated 21.07.2015. It is the case....
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....T. 592 (Tri. - Del.)] iii. Commissioner of Customs (Port), Kolkata v. Enterprise International Ltd. & ors. [Civil Appeal Diary No. 9454/2017 dated 24.07.2017 (S.C.)] iv. Artex Textile Pvt. Ltd. v. Commissioner of C.Ex. & Cus., Faridabad [Final Order No. 57663 of 2017 dated 01.11.2017 in Customs Appeal No. 51730 of 2016 - CESTAT, New Delhi] v. Artex Textile Pvt. Ltd. v. Commissioner of Cus., Delhi [Final Order No. 51850 of 2019 dated 21.10.2019 in Customs Appeal No. 50869 of 2019 - CESTAT, New Delhi] vi. Commissioner of Cus., Patparganj v. Artex Textile Pvt. Ltd. [Final Order Nos. 50875-50921 of 2017 dated 15.02.2017 in Customs Appeal No. 50043 of 2017 & ors. - CESTAT, New Delhi] vii. Commissioner of Cus. (Port), Kolkata v. Enterprise International Ltd. [Final Order Nos. 76658-76659 of 2018 dated 20.09.2018 in Customs Appeal Nos. 76229-76230 of 2017 - CESTAT, Kolkata] viii. Commissioner of Cus. (Port), Kolkata v. Enterprise International Ltd. [2019 (369) E.L.T. 1108 (Tri. - Kol.)] ix. Artex Textile Pvt. Ltd. v. Commissioner of Cus., ICD, Patparganj [Final order Nos. 50953-50954 of 2019 dated 24.07.2019 in Customs Appeal Nos. 50492-50493 of 2019 - CESTAT, New Delhi] x....
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.... [1992 (61) E.L.T. 352 (S.C.)] were not applicable since the said judgements were passed based on the existing / prevalent law at the relevant point of time, before the amendments. 4.3 He would also invite our attention to the judgement of the Hon'ble Supreme Court in the case of M/s. SRF Ltd. (supra), to start with, to indicate that what was considered by the Hon'ble Supreme Court was a different Notification and hence, the Hon'ble Supreme Court did not deal with the amended Notifications impugned in the present appeals. 4.4.1 Smt. Anandalakshmi Ganeshram, Ld. Superintendent, invited our attention to the common order of CESTAT, New Delhi in the case of M/s. Soir International & ors. v. Assistant Commissioner of Customs, Delhi & ors. [Final Order Nos. 50356-50372 of 2023 dated 21.03.2023 in Customs Appeal Nos. 52158-52164 of 2016 & ors. - CESTAT, New Delhi] and connected appeals, wherein the co-ordinate Bench has, after following the decision of the Hon'ble Madras High Court in the Writ Petitions (supra), dismissed the appeals. She would invite our attention to paragraph 21 of the said order, which reads as under: - "21. Another internationally accepted principle of trade is "N....
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....- CESTAT, New Delhi] (iv) Sedna Impex India Pvt. Ltd. v. Commissioner of Cus., Mundra [Final Order Nos. A/10106-10190/2022 dated 18.02.2022 in Customs Appeal Nos. 10514 to 10598 of 2017 - CESTAT, Ahmedabad] are concerned, wherein though the co-ordinate Benches have considered the above Notification Nos. 34/2015 and 37/2015 ibid., he would submit that in view of the binding decision of the Hon'ble jurisdictional High Court in the assessees' own cases (supra), the same are not applicable. 4.7 He would thus pray for sustaining the impugned orders. 5. Heard both sides and perused the documents placed on record. We have very anxiously considered the various decisions of higher judicial fora and we have also considered the orders of the co-ordinate Benches of the CESTAT. 6. After hearing both sides and considering the fact that by the time the assesssees-importers had filed their bills-of-entry the new / amended Notifications having come into force, the issue to be decided by us is: whether the appellants are entitled to the benefit of Notification No. 34/2015-C.E. dated 17.07.2015 and Notification No. 37/2015-C.E. dated 21.07.2015? 7.1 At the outset, given the undisputed facts, w....
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....on the touchstone of the source of power or the Constitutional provisions or other legally accepted parameters. The validity of the notifications statutorily issued cannot be tested on the basis of a Circular issued by the department, post facto. Therefore, the above argument of the writ petitioners cannot be accepted. 75. One more contention raised by Mr. R. Yashodh Vardhan, learned senior counsel for the petitioner is that the Court should make a distinction between a condition precedent and a condition subsequent, before finding out whether the benefit of the exemption notification is available to an importer or not. In other words, his contention is that if the exemption notification imposes a condition that can be complied with only at the pre-production stage by the domestic manufacturer, such a condition precedent cannot be expected to be complied with by an importer. On the contrary, if the exemption notification prescribes a condition that could be complied post-production by the domestic manufacturer, as it happened in the case of Aidek Tourism, then an importer can be expected to comply with such a condition. A condition which is impossible of being complied with by an....
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.... manufacturer who has suffered a duty of Excise to the extent of Rs. 100/- on the inputs, with which he manufactured another product. Assuming that the duty of Excise leviable on the product manufactured by him is Rs. 200/- and assuming such duty of Excise is exempt by virtue of a notification subject to the condition that the manufacturer has not taken CENVAT credit, he would have two options. The first option for him would be not to take CENVAT credit but to claim the benefit of the exemption notification. In such an event, he need not pay Rs. 200/- as duty of Excise on the product manufactured by him. But he would have used inputs which had already suffered a duty of Excise to the extent of Rs. 100/-. In other words, he is a person who gets the benefit of an exemption from payment of Rs. 200/-, due to his refusal to claim CENVAT credit to the extent of Rs. 100/-. 81. The second option open to him is to claim Cenvat credit. In which case, he will not be entitled to the benefit of the exemption notification. As a consequence, he has to pay Rs. 200/- as Excise duty on the goods manufactured by him. But due to his claim for Cenvat credit, he will end up paying Rs. 100/-. 82. An ....
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....efore, the notifications do not offend Section 3. . . . . 89. It may be of interest to note that in the case of silk itself, the process of manufacturing of silk fabric from raw silk, involves the following steps : (i) sorting and softening the cocoons, (ii) reeling the filament, (iii) packaging the skeins into bundles, (iv) forming silk yarn by twisting the reeled silk, (v) degumming the thrown yarn (to achieve softness and shine), (vi) dyeing wherever necessary. In these processes, a solution known as degumming solution is used. Sometimes, reeling the filament could happen mechanically, for which capital goods in the form of machinery may be used. Therefore, some of the items that are used in these processes, which naturally attract duty of excise, are treated as inputs. Once they are treated as inputs within the meaning of Rule 2(k) of the Cenvat Credit Rules, a credit can be claimed on the duty of excise duty on those inputs. Therefore, the fact that the raw materials do not attract a duty of excise is hardly a matter of concern. It would be a different matter if all the inputs which come within the definition of the expression "input" under Rule 2(k) of the CENVAT Cr....
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.... object of such Notifications is only to grant exemption to those final products, on which, some duty has been paid (in India) at the stage of inputs. In other words, Notifications of this nature, are not merely conditional, but also restrictive in nature, as they confer benefit not upon all manufacturers of exempted goods, even if they are domestic manufacturers, but only upon those, who use inputs that had suffered duty. (iii) In cases where the exemption Notification stipulates only one condition namely that no Cenvat credit ought to have been availed on the inputs, the benefit of the Notification will be available only to those, who satisfy two conditions namely that the inputs used by them suffered a duty and that they did not seek Cenvat credit. Since an importer can never satisfy the first condition, the second condition becomes inapplicable to him and he cannot be heard to contend that the inapplicability of the condition by itself would make him eligible for the grant of the benefit. (iv) In cases where the exemption Notification stipulates two conditions, namely that the inputs should have suffered duty and that no Cenvat credit should have been availed, then the benefi....
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....s to be binding and effective between the parties unless it is a nullity or unless the court may pass a specific order staying or suspending the operation or execution of the judgement, decree or order under challenge. 12.3 Further, it is held at paragraph 39 as under: - "39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two-Judges Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the constitution, (ii) doctrine of merger, (iii) res judicata, and (iv) Rule of discipline flowing from this Court being the highest court of the land." 13. The doctrine of merger was once again considered in the case of West Coast Paper Mills Ltd. (supra) and the relevant observations of the Hon'ble Apex Court are as under: - "14. Article 136 of the Constitution of India confers a special power upon this Court in terms whereof an appeal shall lie against any order passed by a Court or Tribuna....
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....t in vogue as on the date of import / filing of bills-of-entry. To us, therefore, the change in law as brought about in the amended Notifications, has clearly been appreciated by the Hon'ble High Court in its judgement in the assessees' own cases (supra), which has rightly been followed by the Ld. first appellate authority. 16.2 The prayer of the appellants even in the grounds-of-appeal reveal clearly that they are seeking the benefit of an erstwhile Notification which stood duly effaced, but however, there is no claim made as to satisfying the conditions prescribed under the amended Notification Nos. 34/2015 and 37/2015 ibid. which were applicable. By the amending Notification No. 34/2015-C.E. dated 17.07.2015, the condition that was prescribed was as to the non-availment of CENVAT Credit on the inputs used in the manufacture of goods. The admitted position is that the importers i.e., the assessees before us, were not the manufacturers since the impugned goods were manufactured outside India and hence, it is quite obvious that no CENVAT Credit would be available to be availed on the impugned goods. Perhaps to this extent, it appears that the only condition in Notification No. 34/....
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....however, inequitable or unjust the result may be. The words, 'dura lex sed lex' which mean "the law is hard but it is the law." may be used to sum up the situation. Therefore, even if a statutory provision causes hardship to some people, it is not for the Court to amend the law. A legal enactment must be interpreted in its plain and literal sense, as that is the first principle of interpretation. 20. In Mysore State Electricity Board v. Bangalore Woolen, Cotton & Silk Mills Ltd. & Ors., AIR 1963 SC 1128 a Constitution Bench of this Court held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute. 21. In Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529, this Court, while dealing with the same issue observed as under:- "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not." (See also: The Commissioner of Income Tax, West Bengal I, Calcutta v. M/s Vegetables Products Ltd., AIR 1973 SC 927; and Tata Power Company Ltd. v. R....
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....tted and the respondent also did not appear during the personal hearing. In respect of the second claim, the same was rejected as being time-barred in addition to non-submission of duplicate copy of bill-of-entry, re-assessed bill-of-entry and TR-6 challans. Consequently, the adjudicating authority rejected the claim after referring to Public Notice No. 88/2019 dated 18.10.2019 on the ground that the order of assessment, including the self-assessment, should have been duly modified. 19.3 Against the said rejection, it appears that the respondent preferred two appeals contending that they had submitted all the documents and the deficiency memos were only sent to their branch office. In respect of the second appeal, the respondent had contended that they had submitted to group for re-assessment, but the same was never assessed; the original bill-of-entry and TR-6 challans were misplaced, for which reason an indemnity bond was executed and since the duty was paid under protest, time-limitation would not apply. 19.4 During appellate proceedings, the first appellate authority has recorded the grievance of the assessee, which inter alia read as under: - "5. The appellant has made the....
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....n vide F.No. SR No. 1530/2020/Refunds-II in respect of following bills of entries S. No. BE No. BE Date 1 10174 29.05.2015 2 9026522 24.04.2015 3 2009921 24.07.2015 4 2010254 24.07.2015 5 2017340 28.07.2015 6 2047340 28.07.2015 7 2057600 28.07.2015 8 2321478 21.08.2015 9 2032240 27.07.2015 Table:2 Appeal No. C3/11/473/R/2020 Against Communication vide F.No. SR No. 11/2020/Refunds-II in respect of following bills of entries S. No. BE No. BE Date 1 5165137 10.04.2014 2 7675184 12.12.2014 3 7987733 14.01.2015 20.2 From the above Table:1 in respect of 9 bills-of-entry, we find that the bills-of-entry at Sl. Nos. 1 and 2 therein are clearly before the first amending Notification No. 34/2015-C.E., which came into effect from 17.07.2015. The three other bills-of-entry at Table:2 above are also clearly prior to the amending Notification No. 34/2015-C.E. and hence, insofar as these bills-of-entry are concerned, we have no hesitation in approving the finding of the first appellate authority and to this extent, therefore, the order of the first appellate authority is upheld. 20.3 Insofar as the bills-of-entry at Sl. Nos. 3 to 9 at Table:1 are c....