AI Drafter 
TaxTMI 
TaxTMI 
2024 (12) TMI 1035
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....e and Shri Anoop Singh, Ld. Joint Commissioner for the Revenue, we have considered the rival contentions and we have given conscious consideration to the documents as well as judicial precedents relied upon by both the sides. 3. The only question that arises for our consideration is whether the appellant's claim for benefit of Nil CVD in terms of Notification No.30/2004-CE is valid. 4. The appellant has mainly relied upon the decision of the Hon'ble Supreme Court in the case of SRF Ltd. Vs Commissioner of Customs, Chennai - 2015 (318) ELT 607 (SC) which decision has been followed by CESTAT also. He would draw our attention to paragraph 7 of the said decision which reads as under : "7. We are of the opinion that the aforesaid reasoning is no longer good law after the judgment of this Court in 'Thermax Private Limited v. Collector of Customs (Bombay), New Customs House' [1992 (4) SCC 440 = 1992 (61) E.L.T. 352 (S.C.)] which was affirmed by the Constitution Bench in the case of 'Hyderabad Industries Limited v. Union of India' [1999 (5) SCC 15 = 1999 (108) E.L.T. 321 (S.C.)]. In a recent judgment pronounced by this very Bench in the case of 'AIDEK Tourism Services Privat....
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.... importer viz. M/s.Aditya International Ltd. by the very same Commissioner (Appeals) and therefore the impugned order of Commissioner (Appeals) is manifestly illegal. Further, he has relied on following orders : i. Final Order No. 40280 of 2019 dated 17.1.2019 in the case of Commissioner of Customs (Air), Chennai Vs. Sony India Pvt.Ltd. ii. Final Order No. 50953 - 50954 of 2019 dated 24.7.2019 of CESTAT, New Delhi in the case of Artex Textile Pvt. Ltd. Vs. Commissioner of Customs, Patparganj and Ors. iii. Final Order No. 51850 of 2019 dated 21.10.2019 of CESTAT, New Delhi in the case of Artex Textile Pvt. Ltd. Vs. Commissioner of Customs, Patparganj and Ors. iv. Proceedings of the Hon'ble Supreme Court admitting the case of M/s. HLG Trading by grant of leave vide Proceedings dated 11.3.2019. v. Final Order No. A/10106 - 10190 of 2022 dated 18.2.2022 of CESTAT, Ahmedabad in the case of Sedna Impex India Pvt. Ltd. Vs. CCE, Mundra. vi. Final Order No. A/11267 - 11270 of 2023 dated 15.6.2023 of CESTAT, Ahmedabad in the case of Kunj Bihari Textiles Vs.CCE, Mundra. vii. Final Order No. 50356 -50372 of 2023 dated 21.3.2022....
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.... exemption notification which is required to be strictly interpreted. 7. In his rejoinder, Ld. Advocate would submit that the decision of the Hon'ble High Court in the case of HLG Trading Vs Union of India (supra) has been challenged before the Hon'ble Supreme Court wherein the Hon'ble Apex Court has entertained the same by granting leave and converted the S.L.P as Civil Appeal. It is thus his submission that, the decision in HLG Trading (supra) is in jeopardy and cannot be the last word on the subject. He would also rely upon the decision of Hon'ble Supreme Court in Union of India Vs West Coast Paper Mills Ltd. - 2004 (164) ELT 375 (SC) to contend that once the leave is granted, the order of lower court / Tribunal is in jeopardy and therefore under judicial scrutiny and not free from doubt. 8. We find that in the case of HLG Trading and connected appeals, this very Bench had an occasion to consider more or less similar issue vide Final Order Nos.40902-40915 dated 12.10.2023 wherein it has been held as under : "7.1 At the outset, given the undisputed facts, we do not find any reasons at all to interfere with the impugned Orders-in-Appeal since we find that the Hon'bl....
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.... he is manufacturing goods outside the country, he would not have paid duty of Excise to the Government of India on the inputs used in his product. Nevertheless he would equate himself with a person who has not claimed CENVAT credit and avail the benefit of the exemption notification. The result is that a domestic manufacturer pays an extra amount of Rs. 100/-, in the example given above, while the importer does not pay anything. Neither Section 3 of the Customs Tariff Act, 1975, nor Article III of GATT required that an importer should be placed in a more advantageous position than the domestic manufacturer. The only requirement under GATT and even under Section 3 of the Customs Tariff Act is that the importer should not be put to a disadvantageous position than the domestic manufacturer. But what the petitioners want is to place the importer in an advantageous position. This is not permissible. 83. As we have indicated earlier, a challenge to a condition prescribed in an exemption notification can be tested only on very limited parameters. None of the parameters is satisfied in this case. The exemption notifications dated 17-7-2015 and 21-7-2015 are issued in exercise of ....
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....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 availed on the inputs, the benefit of the Notifi....
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....ppeal 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 twoJudges Bench decisions there is a conflict of opinion and needs to be set at rest. The source ....
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....ng 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 billsof-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-ofappeal reveal clearly that they are seeking the benefit of an erstwhile Notification which stood duly effaced, but ....
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....nts 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 Board v. Bangalore Woolen, Cotton &....