TaxTMI 
TaxTMI 
2026 (6) TMI 1240
X X X X Extracts X X X X
X X X X Extracts X X X X
....14/01/2015, 7985717 dated 14/01/2015 and 7924893 dated 07/01/2015. The importer claimed exemption from CVD under Notification No.30/2004 CX dated 09/07/2004 and also claimed exemption from SAD. A query was raised by the Appraising Group III to justify the notification exemption claimed. In reply to query, the importer stated that CVD was exempt under Notification No.30/2004 CE, whereas SAD was exempt on account of the goods being exempt from VAT in Uttar Pradesh. The Appraising Group denied the exemption claimed by the importer and assessed the three bills of entry in final and realized the duty in full. 3. Being aggrieved, the importer preferred an appeal before the Commissioner of Customs (Appeals), Kolkata on the following grounds:- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... assessing officer justifying the assessment or without giving any reason or grounds of rejection. 5. Against the said order, the Revenue is before us. 6. Heard the Ld. Authorized Representative of the Revenue and perused the records. 7. We find that the issue involved is squarely covered by the decision of this Tribunal in the case of Commissioner of Customs (Port), Kolkata vs. Aahana Commerce Pvt. Ltd. [Final order No. 76168/2025 in Appeal No. C/76932/2017 dated 19.03.2025 - CESTAT, Kolkata] wherein, under similar facts and circumstances, it has been held as under:- "2. The Learned Departmental Representative reiterates the Grounds of Appeal and justifies the impugned Order. 3. The Learned Senior Advocate appear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shown to be not chargeable to duty of excise in India, there is no question of levy of countervailing duty on the imported commodity. It is pertinent to note, that Raw Silk, the basic raw material used in manufacture of Silk Fabrics is not chargeable to excise duty in India, hence there is no question of availing CENVAT Credit in India. Therefore, it observed that the benefit of nil rate of CVD is to be extended to the appellant, since there was no way he could have fulfilled the requirement of not availing CENVAT credit on inputs. This would also enable a level playing field with the domestic manufacturers, who have been permitted to either take benefit of nil CVD as per this Notification, or take credit for CENVAT on the CVD paid by them.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Revenue in the SRF case supra. With this dismissal the issue between the parties became final, leaving no scope for re-asserting and bringing about the applicability of res judicata and the principle of stare decisis. 10. The Review Application filed in the case of SRF Ltd. was dismissed by the Supreme Court on 15.07.2016 (2016 (340) ELT A 202 SC). This dismissal also overrules the judgement in HLG Trading Co. concluding that importer has to fulfil conditions of non availment of credit and is contra SRF Ltd. decided by the apex court. 11. The amendment made by notification No. 34/2015-CE dated 17/7/15 provides a condition qua payment of duty on inputs and non-availment of Cenvat Credit by the manufacturer. Therefore, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as a manufacturer of the goods and thereafter the amount of Excise duty/Additional Duty that is required to be determined and paid. Honb'le Court held so following the Constitution Bench's judgment of Honb'le Supreme Court in case of Thermax Pvt ltd [1999 (6) SCC 375]. 15. Further the said position has been reiterated by the apex court, in a slew of cases viz. (i) Motiram Tolaram Vs Union of India, CCE vs J.K Synthetics, (2000) 10 SCC 393 (ii) Lohia Sheet products Vs Commr of Customs (2008) 11 SCC 510 and (iii) Collector of Customs (Preventive) Vs Malwa Industries Ltd (2009) 12 SCC 735. It is now settled that the rate of duty would be only that which an Indian Manufacturer would pa....