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TMI Blog2014 (11) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 - CESTAT, CHENNAI] and CCE, Madras Vs. Sudharsan Pine Products Ltd. [1999 (1) TMI 132 - CEGAT, MADRAS] relied by respondent are altogether different from the present context of the case. An exemption Notification is read strictly. The claimant of such benefit has to prove that conditions of the Notification have been satisfied discharging burden of proof following the ratio laid down in the case of Motiram Polaram Vs. Union of India [1999 (8) TMI 68 - SUPREME COURT OF INDIA] and the ratio laid down in the case of Eagle Flask Industries Ltd. Vs. CCE, Pune [2004 (9) TMI 102 - SUPREME COURT OF INDIA]. The respondents failed to discharge the burden of proof to the effect that the goods imported did not avail remission of CENVAT in the exporting country under WTO agreement - Decided in favour of Revenue. - Appeal Nos. C/71-73, 247, 253 & 2726/2012-CU[DB], Appeal Nos. C/56672 & 56992/2013-CU[DB] - FINAL ORDER NOs.53704-53711 - Dated:- 23-9-2014 - Mr. D. N. Panda and Mr. Manmohan Singh, JJ. For the Appellant : Shri Govind Dixt, DR, Shri VP Batra, DR For the Respondent : C. Manickam, Advocate JUDGEMENT PER: D.N.PANDA; Revenue being aggrieved by the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. On the contrary, levy of additional duty will be against the spirit of providing affordable medicine to the common man of this country. As interpreted and held by the Hon ble Supreme Court, right to life guaranteed Article 21 of the Constitution includes right to health and right to health includes right to affordable medicines also. Levy of discriminatory duty definitely denies the right to get medicine at an affordable price and that is detrimental to public or common interest. 3.1 Revenues preliminary objection is that ld. commissioner (Appeals) is not a writ court but being a statutory authority should have acted within the frame work of law without deciding the appeal as if that was a writ petition before him. Deciding the appeal by him as unconstitutional under section 3 of Customs Tariff Act, 1975 is not the power of ld. commissioner (Appeals). He allowed major exemption to the respondent from ACD directing to pay 1% against imported goods while levy @ 5% was legitimate to provide level playing field to the domestic players against the imports. Decision of ld. commissioner (Appeals) is contrary to law. A statutory authority being a creature of the statute should not u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ 1% instead of 5% against the imports made. To support its contention, Revenue relied on the decision of Tribunal in the case of Howrah Ispat Pvt. Ltd. [2008 (227) ELT 136 (Tri.-Kol)] proposing that levy of 5% ACD would be justified. According to Revenue, if the Notification in question is interpreted in the manner ld. commissioner (Appeals) has done that shall be a threat to indigenous industries and shall defeat purpose of law as well as grant undesirable benefit to respondent severely competing with the like goods manufactured in India. Revenues further emphasis was that if paras 3, 7 and 8 of the said judgement is considered along with five judges judgement in the case of Hyderabad Industries (supra), adjudication orders need to be restored setting aside the appellate order. 6.1 Rebutting the contentions of Revenue, ld. counsel for Respondent submitted that in the case of Mapsa Tapes Pvt. Ltd. [2009 (247) ELT 188 (Tri.)] it has been held that goods imported are entitled to exemption from ACD what an indigenously manufactured goods enjoys. His emphasis was that where it is not possible to determine as to whether the imported goods has enjoyed CENVAT credit, respondent canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Act, 1934 was in force. After independence, Govt. Of India followed the provisions of Sea Customs Act, 1978 along with Indian Tariff Act, 1934. Section 2A of the Indian Tariff Act, 1934 is akin to Section 3 of Customs Tariff Act, 1975. That section deals with countervailing duty and levy of such duty has a long history which is evident from the judgement of apex court in the case of M/s. Kalyani Stores Vs. State of Orissa [1996 (1) SCR 865]. Countervailing duty is intended to be levied only in the context of inter-state trade in India and not in the context of international trade. This is supported by Section 12 of Customs Act, 1962. Therefore, Union of India cannot collect the levy through a Notification since countervailing duty and Additional Customs Duty are different, which is appreciable from the decision of Honble High Court of Gujarat in the case of M/s. Navjivan Mills Co. Ltd. Others Vs. Union of India Other [1982 (10) ELT 155 (Guj.)]. He relied on paras 12 and 14 of the said judgement to highlight that countervailing duty and Additional Customs Duty not being one and the same, the additional duty should be equivalent of central excise duty without any disparity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow and falling under Chapter, heading, sub-heading or tariff item of the First Schedule to the Central Excise Tariff Act, 1985 ( 5 of 1986), specified in the corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon under the said Central Excise Act, as is in excess of the amount calculated at the rate of 1% ad valorem : Provided that nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs or tax on input services has been taken under the provisions of the CENVAT Credit Rules, 2004. TABLE S. No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of the excisable goods (1) (2) (3) 37 30 Medicaments (including those used in Ayurvedic, Unani, Siddha, Homeopathic or Bio-chemic systems), manufactured exclusively in accordance with the formulae described in the authoritative books specified in the First Schedule to the Drugs and Cosmetics Act, 1940 (23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or manufactured in India means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty. 8.4 Reasoning of the provision enacted in section 3(1) of the 1975 Act shows that a parity mechanism is prescribed to levy ACD on imported homeopathy medicine, which is equal to the amount of excise duty for the time being leviable on a like article if produced or manufactured in India. That is levied under the premises that an article imported into India can be produced or manufactured in India and exigible to the levy of excise duty in terms of Section 3(1) of 1975 Act. Such levy is made even if the goods imported into India are not capable of being manufactured in India or are not in fact manufactured in India. The expression excise duty for the time being leviable on a like article if produced or manufactured in India , which occurs in Section 3(1) of the Tariff Act, 1975 means excise duty for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put tax credit to its manufacturers against liability on finished goods and no output duty is payable by them against the goods meant for export. It may also be stated that law of member countries provide refund of input tax if that is not possible to be set off against any duty liability. Accordingly, the medicines imported by Respondent from Germany being without levy of duty thereon, is liable to ACD equal to excise duty levied in India on like goods which is @ 5% at the material time. 8.8 It is settled position that goods are only exported by exporting countries but not taxes thereon. Accordingly, the homeopathic medicine imported from Germany without input tax component therein and export thereof duty free, is an advantageous for that product which adversely affects the domestic goods suffering 5% excise duty cleared for domestic consumption. Accordingly, the levy of ACD @ 5% on the imported goods is meant to offset the burden of excise duty on the domestic goods. Therefore, no levy of ACD @ 5% defeats the object of fair trade making Indian goods costlier by 4% or 3% as the case may be than the imported goods. Tribunal had occasion to deal with similarly situated case in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and the respondent shall fail to succeed on the plea that the imported goods have not availed the duty remission for exports under WTO regime. 8.10 Respondents reliance in the case of Mapsa Tapes Pvt. Ltd. Vs. CCE, Delhi-IV [2009 (247) ELT 188 (Tri. -Del.)] and in the case of Prashray Overseas Pvt. Ltd. Vs. CC, Chennai [2008 (232) ELT 63 (Tri. -Chennai)] is misplaced for the reason that the case of Priyesh Chemicals and Metals was decided in 2005 and the case of Mapsa Tapes Pvt. Ltd. was decided on 26.05.2009 without considering the decision of the Larger Bench of the Tribunal in the case of Priyesh Chemicals and Metals. In the case of Mapsa Tapes Pvt. Ltd., the goods imported was woven fabrics and such woven fabric being manufactured out of silk yarn and waste silk yarn, which are not liable to excise duty in India were exempted from CVD. But in the present case of the respondents, there was no import of the input, which are duty free under central excise law in India nor the homeopathy goods is duty free under Central Excise Tariff Act, 1985. Law is well settled that if excise duty is not leviable on the manufacture of goods, the question of import of like goods to suffer an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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