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TMI Blog2015 (8) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the respondents are eligible for CVD exemption under Notification 30/2004-CE dt. 9.7.2004. There is no infirmity in the orders of LAA - Decided against Revenue. - C/151-154/2012, C/211-235/2012, C/237-242/2012, C/247-255/2012, C/279-290/2012, C/297/2012, C/299/2012, C/302/2012, C/305/2012, C/306/2012, C/320/2012, C/321/2012, C/40475/2014, C/40476/2014, C/40477/2014 - FINAL ORDER No.40781-40846/2015 - Dated:- 10-7-2015 - Shri R. Periasami and Shri P.K. Choudhary, JJ. For The Appellant : Shri M. Rammohan Rao,JC Per R. Periasami All these batch of appeals filed by Revenue are taken up together as the issues are identical. Revenue has filed 66 appeals as listed above against the Commissioner (Appeals) orders. 2. The brief facts of the case are that respondents have filed Bill of Entries for clearance of silk yarn, silk fabrics classifiable under Chapter 30 to Chapter 50 of Customs and Central Excise Tariff. The Bills of Entries were assessed without extending the exemption of CVD vide Notification No.30/2004-CE dt. 9.7.2004 as amended. The appellants preferred appeals before Commissioner (Appeals) against the assessment order passed on the Bill of Entry claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide their Order No.M-128/Kol/2012/S-1356/Kol 2012 dated 19.03.2012. 5. He further submits that the Apex Court decision of AIDEK Tourism Services Pvt. Ltd. Vs CC New Delhi - 2015 (318) ELT 3 (SC) relied by the respondents is not directly relevant to the present issue. The said case law considered the case of treating an importer on par with a manufacturer and by relying Thermax Pvt.Ltd. case, extended the benefit of notification to import of car to be put to use as a Taxi. Whereas the present appeal is dealing with a condition precedent of not availing the Cenvat credit to claim the exemption. He further submits that SRF case of Supreme Court relied upon by respondent is distinguishable. The scope of Supreme Court decision in the case of Thermax is relevant to the extent of treating an importer on par with a manufacturer for the purposes of CVD exemption. The same is not the case in the present appeals. The apex court in the case of Hyderbad Industries relied by the Supreme Court where the issue was exigibility of imported goods to additional duty of customs in a case where similar goods were not manufactured in India. The issue of exemption or interpreting the terms of exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Prashrary Overseas Pvt. Ltd. Vs CC Chennai and allowed the notification benefit. He submits that this Tribunal's above orders has not been set aside by High Court and binding on the LAA and he has rightly followed the Tribunal's decisions. 8. He relied on the recent Supreme Court's decision in SRF Ltd. Vs CC Chennai - 2015-TIOL-74-SC-CUS. He also relied in the case of AIDEK Tourism Services Pvt. Ltd. Vs CC New Delhi - 2015 (318) ELT 3 (SC). He submits that Hon'ble Supreme Court in both these cases has settled the issue on the identical issue of availing exemption from CVD. Ld. Advocate Smt.Sridevi appearing for M/s.Enterprises International Ltd. and Shri Selvakumar, Advocate appearing for M/s.Prashray Overseas Pvt. Ltd., Shiv Shanti Exim Pvt. Ltd. and Texworth International reiterated the arguments advanced by Shri Krishnanandh, Advocate for their appeals also. The counsels relied on the following case law :- (i) Elegant Fabric Vs CC Chennai -2011 (263) ELT 603 (Tri.-Chennai) (ii) Prashray Overseas Pvt Ltd Vs CC Chennai 2009 (235) ELT 300 (Tri.-Chennai) (iii) Prashray Overseas Pvt. Ltd. Vs CC Chennai 2008 (232) ELT 63 (Tri.-Chennai) (iv) Mapsa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er before the Hon'ble High Court, Madras which is still pending. Revenue also contended that notification in question should have been given effect to prospectively and the condition stipulated in the notification is only for local manufacturer of goods and not for importer. We find that this very ground advanced by the Revenue has already been dealt with in detail and decided by this Tribunal Bench in the case of M/s.Prashray Overseas Pvt. Ltd. in the orders reported in 2008 (232) ELT 63 (Tri.-Chenn.) and 2009 (235) ELT 300 (Tri.-Chennai) where the issue of grant of CVD exemption under Notification 30/2004-CE dt. 9.7.2004 has been discussed and allowed appeals. The LAA has rightly relied on the Tribunal's orders (supra) which is binding on him and allowed the appeals. Merely for the reason Revenue filed appeal before Hon'ble High Court, Madras cannot be a ground to deny the benefit allowed by this Bench as no stay granted by the High Court. Therefore, once the Tribunal has already decided the issue and the decision has not been set aside and there appears to be no error on the part of the LAA relying on this Tribunal's decision. In view of Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he central excise duty leviable on like articles made indigenously, this being a measure intended to safeguard the interests of the manufacturers in India. As no duty was payable on silk yarn either indigenous or imported, indigenous silk fabrics were not subject to central excise duty during the material period in terms of Notification No. 30/04-C.E. (supra). Therefore imported silk fabrics imported during the material period need not beat any CVD. The impugned imports are eligible for the exemption contained in Notification No. 30/04. This was also the ratio of our final order Nos. 941, 942/2008 dated 28-8-2008 [2008 (232) E.L.T. 63 (Tribunal)] in respect of the same appellants for 44 consignments imported earlier. The appeal is allowed. 14. We find that Revenue relied on the Supreme Court's decision in the case of Motiram Tolaram Vs UOI (supra) and the Tribunal's Larger Bench decision in Priyesh Chemicals Metals (supra). In this regard the Hon'ble Supreme Court in their recent order in the case of SRF Ltd. Vs CC Chennai (supra) held that the appellants are entitled to exemption from payment of CVD under Notification No.6/2002 and allowed the civil appeal. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be treated as not satisfied. 7. We are of the opinion that the aforesaid reasoning is no longer good law after the judgment of this court in Thermax Private Limited v. Collector of Customs (Bombay), New Customs House [1992 (4) SCC 440] = 2002-TIOL-683-SC-CUS-LB which was affirmed by the Constitution Bench in the case of Hyderabad Industries Limited v. Union of India [1999 (5) SCC 15] = 2002-TIOL-369-SC-CUS-CB. In a recent judgment pronounced by this very Bench in the case of AIDEK Tourism Services Private Limited v. Commissioner of Customs, New Delhi (Civil Appeal No. 2616 of 2001) = 2015-TIOL-23-SC-CUS, the principle which was laid down in Thermax Private Limited and Hyderabad Industries Limited was summarised in the following manner: - 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; albeit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Private Ltd. and Hyderabad Industries Ltd. but also discussed the Apex Court's decision in the case of Motiram Tolaram Vs UOI (supra). The relevant para is extracted herein under :- ..... ... ..... ... This position has been reiterated in Motiram Tolaram v. Union of India - (1999) 6 SCC 375 = 1999 (112) E.L.T. 749 (S.C.), CCE v. J.K. Synthetics (2000) 10 SCC 393 = 2000 (120) E.L.T. 54 (S.C.), Lohia Sheet Products v. Commr. of Customs - (2008) 11 SCC 510 = 2008 (224) E.L.T. 349 (S.C.) and Collector of Customs (Preventive) v. Malwa Industries Ltd. - (2009) 12 SCC 735 = 2009 (235) E.L.T. 214 (S.C.) In fact, in Lohia Sheets and Malwa Industries cases (supra), this Court was considering exemption notifications envisaging use of certain material within a factory and still held that an importer would be entitled to the benefit of the exemption notifications in view of Section 3 of the Tariff Act and the decisions in Hyderabad Industries and Thermal cases. As such, it is now settled that the rate of duty would be only that which an Indian manufacturer would pay under the Excise Act on a like Article. Therefore, the importer would be entitled to payment of concessional/reduce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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