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TMI Blog2017 (8) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... Act provides for. The issue that was formulated as the lis between the parties was the applicable rate of duty to the transaction at issue - Appeal dismissed being not maintainable. X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Vs CC New Delhi (2015-TIOL-74-SC-CUS). The aforesaid judgments address the basis of rejection of the assessee s claim by the Commissioner (Appeals) namely that the non-satisfaction of the conditions set out in Notification 12/2012 relating to the availment or otherwise or CENVAT credit would not be fatal to the assessee s claim. The Bench finds that in a case where the availment of CENVAT credit would itself not arise, the question of fulfilling the same would not be relevant. Thus, for the purpose of attracting additional duty on the import of an article, actual manufacture or production in India was not necessary. 9. The Bombay High Court in the case of Thermax Private Limited Vs. Collector of Customs [1992 (4) SCC 440] affirmed by the Constitution Bench of the Supreme Court in the case of Hyderabad Industries Limited vs. Union of India ([1999 (5) SCC 15] as well as AIDEK Tourism Services Private Limited vs. Commissioner of Customs, New Delhi, (Civil Appeal No. 2616 of 2001) (2015-TIOL-23-SC-CU) have now settled the position that in the quantification of additional duty in the case of imports, it could be imagined or deemed that the article imported has been manufactured or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely on facts and on law? 2. Whether the Tribunal has committed an error of law in not appreciating that failure to satisfy the condition No.25 envisaged under the Notification Not.No.12/2012-CE dated 17-03-2012 (Sl.No.199) would disentitle the respondent from claiming the concessional duty? 3. Whether the Tribunal committed an error of law in following the decision of the Apex Court in 2015 (318) ELT 607 (SRF Ltd. Vs.CC) instead of following the decision of the Constitutional Bench of the Apex Court in 2010 (260) ELT 3 (Hari Chand Sri Gopal)? 15. Sub-section (1) of section 130 uses the expression determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment . In the present case, the issue for consideration is, simply put, whether the assessee is to be called upon to pay 6% or 1% duty. The satisfaction of conditions for eligibility to claim the concessional rate is a mere factor relevant to determine the actual liability. 16. A phrase identical to the one in section 130(1) i.e. determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment is used in secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr.Srinivas would however emphasize on the observation of the Supreme Court in Navin Chemicals (supra) to the effect that The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. The questions raised by the Revenue in appeal would, at first blush, indicate otherwise. However, on a deeper consideration, it is apparent that the direct and in fact, only issue that arises for consideration is the rate of duty applicable to the transaction, however much the Revenue attempts to project otherwise. A wolf, in sheep s clothing, remains a wolf nevertheless! Mr.Srinivas would also refer to other judgments that we believe are inapplicable for the following reasons: (i) In Commissioner of Customs Vs Edhayam Frozen Foods (2008(230) ELT 225, this Court considered the issue as to whether prawn/shrimps are fish, liable to the levy of agricultural cess. The issue involved herein is different. (ii) This Court, in Commissioner of Customs, Chennai vs. Ashok Enterprises (302 ELT 191) rejected the contention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having a relation to the rate of duty of customs or to the value of goods for purpose of assessment), if the High Court is satisfied that the case involves a substantial question of law. Section 130E of the Customs Act which provides for Appeal to Supreme Court inter alia lays down that an appeal shall lie to the Supreme Court from any order passed by the Appellate Tribunal relating, amongst other things, to the determination of any question having a relation to the rate of duty of customs or at the value of the goods for the purpose of assessment.' Relying on the above observations, Mr.Srinivas would argue that the direct and proximate cause of action in the present case does not concern the rate of duty but a claim of exemption. The Supreme Court in the case of New India Assurance Company Limited Vs.M/s.Zuari Industries Limited (2009) 9 SCC 70, had thus to say in the context of what constitutes proximate cause. '22. Apparently there is no direct decision of this Court on this point as to the meaning of proximate cause but there are decisions of foreign Courts and the predominant view appears to be that the proximate cause is not the cause which is nearest in time or pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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