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TMI Blog2016 (12) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of SRF Ltd. [2015 (4) TMI 561 - SUPREME COURT] where the CEGAT found that only those conditions could be satisfied which were possible of satisfaction and the condition which was not possible of satisfaction had to be treated as not satisfied and thus the Hon’ble Supreme Court held that appellants were entitled to exemption from payment of CVD in terms of Notification No. 6/2002. After the impugned period and after the judgment of the SRF Ltd., department itself has given the benefit to the appellant for concessional rate of duty till the statutory amendment has taken place in notification No. 12/ 2012. Therefore, we hold that appellants are entitled for benefit of exemption by satisfying the condition No. 16 of notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are not entitled to claim the benefit of said exemption. 3. In these set of facts, the benefit of concessional rate of duty as per notification No. 12/2012 was denied to the appellant. Aggrieved from the said order, appellants are before us. 4. Learned advocate appearing for the appellant submits that issue has been settled by the Hon ble Apex Court in the case of SRF Ltd. vs. Commissioner of Customs, Chennai [2015 (318) ELT 607 (SC)]. Therefore, impugned orders are required to be set aside and appellants are entitled to benefit of concessional rate of duty in terms of notification No. 12/2012. 5. On the other hand, learned AR opposed the contention of the learned Counsel and submits that as per the notification No. 12/2012 CE, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case where in respect of raw nephtha used in HDPE in the foreign country, Central Excise duty leviable under the Indian Law can be levied or paid. Thus, the CEGAT found that only those conditions could be satisfied which were possible of satisfaction and the condition which was not possible of satisfaction had 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 = 1992 (61) E.L.T. 352 (S.C.)] which was affirmed by the Constitution Bench in the case of Hyderabad Industries Limited v. Union of India [1999 (5) SCC 15 = 1999 (108) E.L.T. 321 (S.C.)]. In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a like article being produced or manufactured in India. The words if produced or manufactured in India do not mean that the like article should be actually produced or manufactured in India. As per the explanation if an imported article is one which has been manufactured or produced, then it must be presumed, for the purpose of Section 3(1), that such an article can likewise be manufactured or produced in India. For the purpose of attracting additional duty under Section 3 on the import of a manufactured or produced article the actual manufacture or production of a like article in India is not necessary. For quantification of additional duty in such a case, it has to be imagined that the article imported had been manufactured or produced in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance of the goods upon filing of the B/E and payment of duty is not per se an 'assessment order' in the context of Section 27 (1) (i) as it stood prior to 8th April 2011, particularly if such duty has not been paid under protest. In any event, after 8th April 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person under Section 27 (1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. 14. The Assistant Commissioner (Refund), in the present case, appears to have not noticed the decision of this Court in Am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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