2017 (9) TMI 1011 - AT - Customs

Exemption from payment of CVD - N/N. 30/2004-CE dated 09.07.2004 - denial on the ground that the condition of non-availment of Cenvat credit by the foreign manufacturer does not stand satisfied by the importer - Held that - the assessee had not claimed the benefit of the notification at the time of filing Bills of Entry - The Hon ble Supreme Court in the case of Share Medical Care vs. UOI 2007 (2) TMI 2 - SUPREME COURT OF INDIA , has observed that even if the claim of benefit under a particular notification is not made at the initial stage, the assessee cannot be estopped from claiming such benefit at a later stage - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Exemption from payment of CVD for imported Polyester Knitted Fabrics under Notification No. 30/2004-CE.
- Condition of non-availment of Cenvat credit by the foreign manufacturer.
- Denial of exemption by lower authorities.
- Appellant's appeal against the impugned orders.

Analysis:
The judgment by the Appellate Tribunal CESTAT CHANDIGARH addressed the issue of exemption from payment of CVD for imported Polyester Knitted Fabrics under Notification No. 30/2004-CE. The lower authorities had denied the exemption to the appellant, citing the condition of non-availment of Cenvat credit by the foreign manufacturer as not satisfied by the importer. The Revenue relied on a larger bench decision in Priyesh Chemicals & Metals vs. CCE, Bangalore to support their stance against the appellant.

In a previous decision related to the appellant's case, the Tribunal had considered a similar issue and referred to the Hon'ble Supreme Court's decision in SRF Ltd. vs. CC, Chennai. The Supreme Court's ruling emphasized that the condition of non-availment of Cenvat credit by the manufacturer did not need to be fulfilled by the importer. Following this precedent, the Tribunal set aside the impugned orders and allowed all appeals with consequential relief to the appellant.

The Revenue acknowledged that the issue had been decided in favor of the appellant. Additionally, the Tribunal highlighted that the Commissioner (Appeals) had raised an observation regarding the appellant not claiming the benefit of the notification at the time of filing Bills of Entry. However, referencing the Hon'ble Supreme Court's decision in Share Medical Care vs. UOI, the Tribunal noted that the appellant could still claim the benefit at a later stage, rendering the Revenue's objection unsustainable.

Based on the precedent decisions and legal principles established by the Hon'ble Supreme Court, the Tribunal set aside the impugned order and allowed the appeal with consequential relief to the appellant. The judgment concluded with the order being dictated and pronounced in the court.