9911796707
TMI Blog2014 (12) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption available subject to fulfillment of the criteria given in the notification viz. (1) goods should be conforming to the description given in the Table of the notification (2) the goods must fall under the heading or sub heading of the first Schedule of the CETA. From the plain reading of the said exemption notification, we find that if the goods do not fall under any heading or sub heading or under 8 digit tariff heading but only fall under the description, then they would not be covered by the notification. Non-submission of the essentiality certificate - The condition in the customs notification and the excise notification are independent and the exemption benefit also are independent of each other. Non-submission of the essentiality certificate is sufficient evidence to hold that appellants have not fulfilled the conditions of notification. Therefore, lower authorities have rightly denied on this ground by relying the Tribunal decision in the case of Airport Authority of India Vs CCE (2004 (11) TMI 378 - CESTAT, NEW DELHI). Adjudicating authority has rightly classified the imported goods under chapter sub-heading as explained at Table-III above and denied CVD exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion wrongly as the subject goods are not classifiable under Chapter heading specified in the said notification. Accordingly, the show cause notice dt. 2.12.2005 was issued read with corrigendum dt. 3.1.2006 demanding differential customs duty of ₹ 1,48,92,523/- for re-classification of the imported goods and denying the exemption notification. Adjudicating authority confirmed the demand. The appellants filed appeal against the said order and the Commissioner (Appeals) has upheld the adjudication order and rejected their appeal. Hence the present appeal. 3. Ld.Advocate for the appellants submits that they have imported Infusion Resins, Hand lay up Resins (Crystic KH) and Gelcoat (Crystic KSD) for manufacture of rotor blades for WOEG. They have availed concessional rate of Basic Customs Duty under Notification No.21/2002-Cus. dt.1.3.2002 and CVD exemption under Central Excise Notification No.6/2002-CE dt.1.3.2002 as amended by Notification No.29/2005 dt. 31.5.2005 for the specified resins. The department attempted to reclassify the goods under different 8 digit chapter headings and denied the benefit of CVD exemption and held that the imported goods do not fall within 8 digi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/2002-CE is only technical lapse. He submits, there was no proposal in the SCN to deny exemption on the ground of non-production of certificate. This issue was not raised before the authority. The benefit cannot be denied on this count. He submits that considering the Govt's intention to allow import raw materials duty free for manufacture of rotor blades for WOEG there was exemption available from 31.5.2005 and thereafter once again exemption was extended upto 24.4.2010, the government rectified the omission which was left out in notification No.29/2005-CE dt. 31.5.2005 since the govt realized the omission and extended the benefit of CVD exemption and the exemption should be made applicable to the goods covered in the present case. He relied on the following case law :- 1) Jain Engineering Co. Vs CC Bombay 1987 (32) ELT 3 (SC) 2) UOI Vs Wood Papers Ltd. 1990 (47) ELT 500 (SC) 3) Krishna Sahakari Sakhar Karkhana Ltd. Vs CCE 1991 (55) ELT 411 (Tribunal) 4) CCE Shillong Vs Wood Craft Products Ltd. 1995 (77) ELT 23 (SC) 5) CCE, Vadodara Vs Dhiren Chemical Industries 2002 (143) ELT 19 (SC) 6) W.P.I.L Ltd. Vs CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exemption of additional duty of Customs (CVD) on the items listed below :- Table-I Sl. No. Description of the goods imported Nature of the goods Type of resin 1. Crystic 0209 KSD/KH Gelcoat Polyester 2. Polylite 413-577 Infusion resin Polyester 3. Polylite 410-M912 Hand lay up resin Polyester 4. Polylite 413-573 Hand lay up resin Polyester 5. Polylite 413-571 413-587 Infusion resin Polyester The appellants have claimed CVD exemption under notification No.6/2002 as amended by notification No.29/2005 by classifying the items under different classification as under :- Table-II Sl. No. Description of the goods imported Nature of the goods Type of resin Clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Acrylic/vinyl Polymer based Gelcoats, as per List 9A appended to Sl.No.237A of C.Ex. Notfn.06/02 dt. 01.03.02. Chemically polyester resins are characterized by the presence of -[-C-O-C]- linkage in the polymer chain and they are obtained by condensing a polyfunctional alcohol with a polyfunctional organic acid. Whereas acrylic / vinyl polymers are characterized by -[C-C-C]- or -[C-C-C]- linkage in the polymer chain and they are obtained from acrylic / vinyl monomers. (ii) Polylite 413-577, 413-571 and 413-587 are infusion resins of unsaturated polyester resins as per the technical write up given by the appellant. These resins are based on unsaturated polyester resins classifiable under 39039190 whereas exemption is available only to infusion resins falling under CTH 39073090 which is only for Expoxide category resins. Chemically Epoxide resins are characterized by presence of reactive Epoxide groups C-C (which are obtained by condensing phenolic compound with Ephichlorohyderin) in the polymer chain and are thus chemically completely different from polyester resins which are characterized by the presence of -[-C-O-C]-linkage in the polymer chain (iii) Polylite 410-M912 and 413- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods of the description specified in column (3) of the Table below or specified in column (3) of the said Table read with the concerned List appended hereto, as the case may be, and falling within the Chapter, heading No. or sub heading No. of the First Schedule to the Central Excise Tariff Act, 1985 (5 or 19860 (hereinafter referred to as the Central Excise Tariff Act), specified in the corresponding entry in column (2) of the said Table,- (a) from so much of the duty of excise specified thereon under the First Schedule (hereinafter referred to as the First Schedule ) to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table; and (b) from so much of the special duty of excise leviable thereon under the Second Schedule (hereinafter referred to as the Second Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (50 of the said Table, Subject to the relevant conditions specified in the Annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. From the plain reading of the said exemption notification, we find that if the goods do not fall under any heading or sub heading or under 8 digit tariff heading but only fall under the description, then they would not be covered by the notification. The law has been settled by the Hon'ble Supreme Court in various judgements regarding the interpretation of any exemption notification. The Hon ble Supreme Court in the case of Appraiser Madras Customs Vs Tamil Nadu Newsprint Papers Ltd. (supra) had clearly laid down the guidelines . The relevant portion of the Hon'ble Supreme Court's order in the aforesaid case is reproduced below:- 12. It is common ground that the respondent was entitled to the benefit of this Notification as the conditions prescribed therein were satisfied. It is significant to note that the Notification does not exempt in general all the articles imported into India for manufacture of newsprint and printing and writing paper where at least 75% bagasse pulp is used for such manufacture, and the Directorate General of Technical Development certifies in each case that such articles are required for the said purpose. But, it exempts on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave [1978 (2) E.L.T. (J 350) (SC) = 1969 (2) S.C.R. 253) that such a Notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption. The above case laws squarely applies to the facts of the present case. The other case law relied by appellants also is not relevant to the present issue. In the above case laws goods are either described and classified it may be classifiable one or more headings and the description of the goods are given in general description. Whereas in the present case, we are of the considered view that the adjudicating authority has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for claiming the benefit under customs notification 21/2002 cannot be made applicable to avail CVD exemption under notification 6/02. The appellants have to comply with the conditions of the said notification which clearly stipulates that a certificate from the competent authority should be produced before the clearance of the goods for claiming above exemption. The condition in the customs notification and the excise notification are independent and the exemption benefit also are independent of each other. Non-submission of the essentiality certificate is sufficient evidence to hold that appellants have not fulfilled the conditions of notification. Therefore, lower authorities have rightly denied on this ground by relying the Tribunal decision in the case of Airport Authority of India Vs CCE (Supra). 14. In view of the above discussions, we hold that adjudicating authority has rightly classified the imported goods under chapter sub-heading as explained at Table-III above and denied CVD exemption. Commissioner (Appeals) also dealt with the issue in detail in the impugned order. By respectfully following the Supreme Court decision (supra) and the Tribunals decision on the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
