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TMI Blog2008 (1) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... d Shri D.N. Panda, Member (J) [Order per: Chittaranjan Satapathy, Member (T)]. - Heard both sides. 2 . The appellants have imported candles from Nepal. The issue is whether such imports are to be charged to 4% of the additional customs duty applying Notification Mo. 3/2001 or these should be charged of additional customs duty equal to the excise duty leviable on like articles made in India. The exemption under Notification is subject to the condition that credit of duty paid on inputs or on capital goods has not been taken under the Cenvat Credit Rules. 3. Shri S.K. Bagaria, learned Senior Advocate appearing for the appellants inter alia argues as follows :- (i) The additional customs duty can be levied only equal to the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Plastic Processors v. Union of India - 2002 (143) E.L.T. 521 (Del.), which held the Board's Circular No. 38/2000-Cus., dated 20-5-2000 is illegal. He further cites the subsequent Circulars of the Board bearing Nos. 112/2003-Cus., dated 31-12-03 and 26/2004-Cus., dated 31-3-04. 5. Shri K.K. Biswas, learned Advocate appearing for the Department states that in the appellants' own case, the Tribunal vide Order dated 23-8-02 reported in 2003 (160) E.L.T. 1022 has held that they are not eligible for concessional rate of duty under Notification No. 3/2001-C.E. following the decision of the Larger Bench of the Tribunal in the case of Priyesh Chemicals and Metal v. CCE, Bangalore - 2000 (120) E.L.T. 259 (Tri-LB). It is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has held that when the Order of the Tribunal on the same question is not appealed against, the issue attains finality and questioning its correctness later on, is not permissible. 8. We also find that in the case of Motiram Tolaram v. UOI - 1999 (112) E.L.T. 749 (S.C.), the 3 Judges Bench of the Hon'ble Supreme Court has held in a similar case that the Notification was deliberately worded in such a way that the imported goods cannot get the concessional excise rate. In the said case, the exemption was subject to payment of appropriate amount of duty of excise on the inputs. In the present case, the Notification is also worded in a way to make the exemption conditional so that the inputs used in manufacture of candles pay duties wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations of the Hon'ble Supreme Court to the case in hand, we find that an indigenous manufacturer who pays excise duty on the inputs and does not take credit thereon, can only avail the exempted rate of 4% on the candles. To interpret the Notification and make it applicable to imported candles which obviously has not paid any excise duty in respect of the inputs used thereon, as claimed by the appellants, is to deny a "level playing field" to the manufacturers in India. The manufacturers in India pay excise duty on the inputs as well as 4% of duty on the candles, whereas the imported candles which have suffered no excise duty on the inputs would merely pay 4% of additional customs duty on the candles. Such an interpretation, which would pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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