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2023 (4) TMI 721 - AT - CustomsBenefit of CVD @ 8% under Notification No.30/2004-CE dated 09.07.2004 denied - denial of benefit on the ground that imported goods has not suffered duty of excise and credit has not been availed (notification says that benefit of notification will be available only if the goods that are used as inputs in the products manufactured by him, have already suffered duty of excise and the assessee has not availed credit of such duty on the inputs under the provisions of Cenvat Credit Rules, 2004). HELD THAT - The very same issue came up for consideration before the Hon ble Apex Court in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI 2015 (4) TMI 561 - SUPREME COURT and it was held that the assessee would be eligible for the benefit of notification. The Hon ble Apex Court opined that the benefit of notification cannot be denied if the condition is such that it is practically impossible to satisfy the condition - The decision of the Apex Court in the case of SRF Ltd. would be applicable. The jurisdictional High Court in the case of THE COMMISSIONER OF CUSTOMS (EXPORTS) VERSUS M/S. PRASHRAY OVERSEAS PRIVATE LIMITED, CUSTOMS EXCISE SERVICE TAX APPELLATE TRIBUNAL 2016 (5) TMI 1106 - MADRAS HIGH COURT had analysed the issue after the date of amendment. In para-15, the Hon ble High Court also took notice of the fact that the review petition filed by department against the decision of the Supreme Court in SRF Ltd. is pending. The decision of the Hon ble jurisdictional High Court in the case of Prashray Overseas Pvt. Ltd. came to be passed on 28.03.2016 - the decision in the case of Prashray Overseas Pvt. Ltd. is not applicable to the facts and material placed. There are no grounds to interfere with the order passed by the Commissioner (Appeals) - Appeal of Revenue dismissed.
Issues involved:
The issue revolves around the eligibility of the respondent for claiming the CVD exemption under Notification No.30/2004-CE dated 09.07.2004. The primary contention is whether the respondent fulfilled the conditions of the notification regarding availing cenvat credit on duty paid on inputs. Summary: Issue 1: Eligibility for CVD exemption under Notification No.30/2004-CE: The respondent, an importer, claimed the benefit of CVD @ 8% under Notification No.30/2004-CE dated 09.07.2004 for imported silk fabrics. The original authority denied the benefit, but the Commissioner (Appeals) allowed it. The department contended that the respondent did not fulfill the condition of the notification as no duty was paid on the inputs and no cenvat credit was availed. The department relied on a previous case to support its argument. Decision: The Tribunal referred to a case involving SRF Ltd. where it was held that the benefit of the notification cannot be denied if it is practically impossible to satisfy the condition. The Tribunal noted that the respondent in this case did not avail cenvat credit and held that they were entitled to the exemption from CVD, dismissing the department's appeals. Significant Legal Phrases: - "Benefit of notification" - "Cenvat credit" - "Notification No.30/2004-CE" - "Central Excise duty" - "Additional Duty (CVD)" - "Jurisdictional High Court" - "Review Petition" - "Dismissal of the review petition" - "Final Order" - "Open court"
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