TaxTMI 
TaxTMI 
2023 (10) TMI 1469
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....g Order-in-Appeal C.Cus. II No. 37 to 46/2016 dated 13.01.2016 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 benef....
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....port: - i. Sri Vasavi Gold & Bullion Pvt. Ltd. v. Commissioner of Cus., Chennai [2016 (343) E.L.T. 429 (Tri. - Chennai)] ii. Artex Textile Pvt. Ltd. v. Commissioner of Cus. (I&G), New Delhi [2016 (339) E.L.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....
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....rly held that the law declared in Aidek Tourism Services Pvt. Ltd. v. Commissioner of Cus., New Delhi [2015 (318) E.L.T. 3 (S.C.)], Hyderabad Industries Ltd. v. Union of India [1995 (78) E.L.T. 641 (S.C.)], SRF Ltd. v. Commissioner of Customs, Chennai [2015 (318) E.L.T. 607 (S.C.)], Thermax Pvt. Ltd. v. Collector of Customs [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]....
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.... (ii) Commissioner of Cus. (Port), Kolkata v. Enterprise International Ltd. [2019 (369) E.L.T. 1108 (Tri. - Kol.)] [Final Order Nos. A/75172-75176/KOL/2019 dated 17.01.2019 - CESTAT, Kolkata] (iii) 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] (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 si....
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.... of the Circular extracted above indicates that the domestic manufacturer would continue to be exempt from Excise Duty or subject to concessional rate of Duty as the case may be, as they were prior to 17-7-2015, we do not think that by a Circular, the notification issued in exercise of the statutory powers could be whittled down. Moreover, we are called upon in this case to test the vires of the notifications dated 17-7-2015 and 21-7-2015. The vires of these notifications can be tested only 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 notificatio....
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....urers will be left without the benefit of the exemption notification, then the question arises whether the importer would be placed along with those domestic manufacturers who got the benefit or whether they will be placed along with the domestic manufacturers who do not get the benefit. 80. An answer to the above question can be found out by taking a very interesting example provided by Mr. S. Murugappan, learned counsel for the petitioner in the course of his submissions. The learned counsel gave the example of a domestic 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 su....
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....A(1). Therefore, at the outset, the amendments are not ultra vires Section 5A(1). 84. The amendments are not ultra vires Section 3 since the importers are not placed in a more disadvantageous position than that of the domestic manufacturers. By prescribing certain conditions for availing the benefit of exemption, the impugned amendments treat even the domestic manufacturers differently. Placing the importers on par with those domestic manufacturers who do not get the benefit of the exemption notification, does not strike at the root of Section 3. Therefore, 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 mechani....
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....e exemption Notifications are absolute and they do not make the benefit available only upon the fulfillment of any condition, even the importer would be entitled to the benefit of exemption. (ii) In cases where the Notifications for exemption stipulate only one condition namely that the inputs used in the manufacture of the exempted goods should have suffered a duty, then the benefit of the Notification will not be available to any of the importers, since he could have never paid any duty of excise on the inputs used in their manufacture by the foreign manufacturer. This proposition is based upon the premise that the 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 avail....
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.... judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues 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 judgment, decree or order under challenge." 12.2 From Sl. No. (4) (supra), it is clear that upon granting of leave to appeal, though the finality of the judgement, decree or order appealed against is put in jeopardy, it continues 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 ....
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....EDI system. Quite clearly, as on the date of filing the impugned bills-of-entry, there was a change in the law brought about by the amended Notification Nos. 34/2015 and 37/2015 ibid. and hence, the superseded Notification can never be available in the EDI system. What would be available is as per the amended law, that is, the new Notifications would replace the earlier Notification in the system as well. Hence, when a new law comes into effect, an importer can avail the benefit of such law only and if such law prescribes certain conditions, then it is incumbent upon such claimant to satisfy the conditions prescribed thereunder. He cannot be still heard to stake a claim for the benefit under an effaced Notification which is clearly not 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 erstwhil....
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....ertain such claims of the appellants who are only the importers. In this context, we refer to the decision of the Hon'ble Apex Court in the case of Rohitash Kumar & ors. v. Om Prakash Sharma & ors. [(2013) 11 S.C.C. 451] wherein the Hon'ble Court has clearly held that inconvenience of the taxpayer cannot be looked into: - "19. In Bengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR 1955 SC 661 it was observed by a Constitution Bench of this Court that, if there is any hardship, it is for the legislature to amend the law, and that the Court cannot be called upon, to discard the cardinal rule of interpretation for the purpose of mitigating such hardship. If the language of an Act is sufficiently clear, the Court has to give effect to it, 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 Bo....
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....llate authority. Hence, we do not find any case being made out for interfering with the impugned Orders-in-Appeal. The issue, therefore, is decided against the appellants. 18. Resultantly, the appeals stand dismissed. Customs Appeal No. 40032 of 2021: 19.1 In respect of the Department Appeal in Appeal No. C/40032/2021, it appears that the assessee-respondent had filed two appeals against two communications dated 07.01.2020 and 30.04.2020 whereby the refund claims of the assessee in respect of 9 bills-of-entry and 3 bills-of-entry respectively were rejected by the Assistant Commissioner (Refunds). 19.2 The reasons given for rejection of these refund claims made by the respondent herein by the original authority appears to be that the documents called for were not submitted 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 ....
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....der Notification No. 30/2004-C.Ex. and therefore I reassess the bills of entry, modifying the order of self assessment in respect of impugned bills of entry exempting the impugned goods from CVD under Notification No. 30/2004-C.Ex., and order the refund authorities to sanction refund. The 2 appeals cited in Table:1&2 above are therefore allowed with consequential relief. Ordered accordingly" 20.1 What emerges from the above is that there was a request for re-assessment, but however, there was no attempt at all by the Department to consider the above request for re-assessment. To this extent, therefore, the impugned order appears to be correct. Further, the tables which are reproduced at page 3 of 11 / paragraph 1 of the impugned order dated 29.10.2020 are reproduced below:- Table:1 Appeal No. C3/11/127/R/2020 Against Communication 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 232147....