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TMI Blog2015 (3) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 8 of the Rules, which was the position in Thermax Private Limited (1992 (8) TMI 156 - SUPREME COURT OF INDIA) as well, for the purpose of extending benefit of concession contained in Notification No. 64/93-CE, the principle in Thermax Private Limited (1992 (8) TMI 156 - SUPREME COURT OF INDIA) would clearly become applicable. We may point out that a specific query was put to the learned counsel for the Revenue to the effect that if the importer is not deemed as manufacturer for the purpose of applicability of the said notification, then there cannot be a situation where such benefit of this Notification would be extended to any person, inasmuch as, it was almost impossible to visualise a situation where a foreign manufacturer would import the saloon cars in this country and would utilise those cars for tourist taxis. Revenue had no answer or reply to our query. It is obvious that the purpose of exemption Notification No. 64/93-CE was to extend benefits to the importers of saloon cars to use the said cars for tourist taxis. Going by the spirit and the objective behind this Notification, the irresistible conclusion would be to apply the principle of Thermax Private Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal of the Revenue. Against these orders, Revenue is in appeal. 3) On the other hand, in the proceedings emanating from the rejection of the refund by the Assistant Commissioner of Customs (Refund), New Delhi, the appeal of the assessee was dismissed by the Commissioner of Customs (Appeals), New Delhi. This order of the Commissioner was challenged by the assessee before CEGAT. The Delhi Bench of CEGAT, however, dismissed the appeal of the assessee vide orders dated January 08, 2001. Against these orders it is the assessee which has filed the appeals. 4) These are the reasons to hear all the appeals analogously as the question of law raised by the Revenue as well as the assessee is common. 5) Before we advert to the view taken by the two respective Benches of CEGAT, it would be apposite to take stock of few facts which led to the controversy in issue, along with terms of Notification No. 64/93-CE dated February 28, 1993. 6) The admitted facts are that the Honda Accord cars imported by the assessee were manufactured abroad. On the import of such cars, normally, CVD is payable @ 40%. This duty was paid by the assessee at the time of clearance of the imported goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication gives exemption of duty of 10% CVD in respect of particular goods, namely, saloon cars, if such saloon cars are used solely as taxis. It is subject to four conditions mentioned in the proviso. 8) Pertinently, this proviso mentions that the entitlement of further exemption of duty of 10% is admissible to 'the manufacturer of the said saloon car'. It is this expression used in the said proviso which is the bone of contention. According to the Revenue, only the manufacturer of the saloon car, which is imported and used solely as a taxi, is entitled to additional exemption of duty of 10% CVD, as the plain read of the provision manifestly suggests. The submission of the assessee, on the other hand, is that for the purpose of this proviso, the importer, like the assessee, is to be deemed as the manufacturer of the said saloon car. This is the short issue that needs determination. 9) Before adverting to the respective arguments of the learned counsel for the Revenue as well as the assessee, we deem it proper to state the reasons given by the two Benches of CEGAT, rendering opposite decisions. In fact, as we take notice of these orders, it would become apparent as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Tariff Act. The customs duty had been paid on the imported goods under customs tariff Item No. 84.17(1) at 40 per cent of the value of the imported goods plus a surcharge of 25 per cent thereon. The rate of additional duty had to be determined on the basis of Item 29-A(3) of the Central Excise Tariff and the basic excise duty payable thereon was at 80 per cent of the value of the goods under the above item read with Notification No. 42 of 1984/C.E. dated March 1, 1984. However, Notifications (No. 93 of 1976/CE and 63 of 1985/CE) provided a further concession of 25 per cent ad valorem provided conditions set out therein was fulfilled. There was no dispute that the assessee was fulfilling other conditions contained in column (5) of the said Notification, one of which was that the Chiller imported by the assessee was used in a factory - vide item (xiii). The Revenue, however, took the view that the second condition to claim a concession in CVD was not fulfilled, namely, the procedure specified in Chapter X of the Central Excise Rules, 1944 (for short, the 'Rules') was not followed. Chapter X of the Rules deals with remission of excise duty on goods used for special i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, which provides for a concession of 25% ad valorem, as already noted above. As per this Notification, one of the conditions to be fulfilled was that of procedure specified in Chapter X of the Rules. This Chapter provides for - 'remission of (central excise) duty on goods used for special industrial purposes'. Rule 192, which appeared in this Section, relates to 'application for concession' and a reading of this Rule suggested that such application for concession under Chapter X could be filed by a manufacturer only. While holding that for the purpose of getting benefit of remission of CVD under the concession notification, the importer shall be treated as manufacturer. The Court gave the following rationale for holding so: 10...The benefit of Chapter X will no doubt generally be claimed by a manufacturer in which event he will have to make the application, get the licence and give the assurances, bond or guarantee required by the Rules but it can also be claimed by other persons. The language of the Rule applies to any person, not necessarily a manufacturer, wishing to obtain remission of duty sanctioned by a notification under Rule 8 on excisable goods in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that the CVD should only be the amount of concessional duty and, if he has paid more, will be entitled to ask for a refund. In our opinion, the Tribunal was in error in holding that the assessees could not get a refund because the procedure of Chapter X of the Rules is inapplicable to importers as such. (emphasis supplied) 15) The ratio of the aforesaid judgment in Thermax Private Limited (supra) was relied upon by this Court in Hyderabad Industries Ltd. (supra) while interpreting Section 3(1) of the Tariff Act itself; al beit in somewhat different context. However, the manner in which the issue was dealt with lends support to the case of the assessee herein. In that case the Court noted that Section 3(1) of the Tariff Act provides for levy of an additional duty. The duty is, in other words, in addition to the customs duty leviable under Section 12 of the Customs Act read with Section 2 of the Tariff Act. The explanation to Section 3 has two limbs. The first limb clarifies that the duty chargeable under Section 3(1) would be the excise duty for the time being leviable on a like article if produced or manufactured in India. The condition precedent for levy of additional dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her referred with approval to the rationale of the provision as laid down in Thermax case (supra) in the following terms: (At Para 11 of the Report) ... As observed by this Court in Thermax (P) Ltd. v. Collector of Customs (1999) 6 SCC 375 (at SCC pp. 452-53, para 11) that Section 3(1) of the Customs Tariff Act: specifically mandates that the CVD will be equal to the excise duty for the time being leviable on a like article if produced or manufactured in India. In other words, we have to forget that the goods are imported, imagine that the importer had manufactured the goods in India and determine the amount of excise duty that he would have been called upon to pay in that event . To our mind the genesis of Section 3(1) of the Customs Tariff Act has been brought out in the aforesaid observations of this Court, namely, that for the purpose of saying what amount, if any, of additional duty is leviable under Section 3(1) of the Customs Tariff Act, it has to be imagined that the articles imported had been manufactured or produced in India and then to see what amount of excise duty was leviable thereon. This position has been reiterated in Motiram Tolaram v. Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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