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TMI Blog2023 (2) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... are parts of jewellery . Chapter 71 contained in section XIV to the Customs Tariff Act deals with natural or cultured pearls, precious or semi-precious stones, precious metals, metals clad with precious metal, and articles thereof; imitation jewellery; coin - It would be seen that articles of jewellery and parts of articles of jewellery have been separately classified under the restrictive sub-headings of the Customs Tariff. They should, therefore, be treated as separate articles. A perusal of the CVD exemption notification also shows that entry no. 199 of Chapter heading 7113 contains (I) articles of jewellery and (II) articles of silver jewellery. It does not exempt parts of articles of jewellery . When this entry is compared to entry no. 199, as amended by notification dated 26.07.2016, it is seen that parts of articles of jewellery have been included. Such being the position, there is no manner of doubt that it is only w.e.f. 26.07.2016 that parts of articles of jewellery have been included in the CVD exemption notification. It cannot be urged that the amendment made in entry no. 199 on 26.12.2016 is clarificatory in nature - It is for the legislature, in its wisdom, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 [the CVD exemption notification], as amended from time to time, and from special additional duty of customs [SAD] under the Notification No. 21/2012-CUS dated 17.03.2012 [the SAD exemption notification]. 2. The effective rates of duty of CVD for (i) Articles of jewellery and (ii) Articles of silver jewellery are prescribed in Entry No. 199 of the CVD exemption notification and the relevant portion of this notification is as follows: Notification No. 12/2012-Central Excise G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) and in supersession of the notification of the Government of India. xxxxxxxxxx, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the excisable goods of the description specified in column (3) of the Table below read with relevant List appended hereto and falling within the chapter, heading or sub-heading or tariff item of the First Schedule to the Central Excise Act, 1985 (5 of 1986) (hereinafter referred to as the Excise Tariff Act), as are given in the corresponding entry in column (2) of the said Table, from so m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7113 (I) Articles of jewellery; (II) Articles of silver jewellery; other than those studded with diamond, ruby, emerald, or sapphire 1% NIL 16 - 6. Condition No. 16 is as follows: 16 If no credit under rule 3 or rule 13 of the CENVAT Credit Rules, 2004, has been taken in respect of the inputs or capital goods used in the manufacture of these goods. 7. Condition No. 16 was amended on 17.07.2015 and it is as follows: 16 If the said excisable goods are manufactured from inputs or capital goods on which appropriate duty of excise leviable under the First Schedule to the Excise Tariff Act or additional duty of customs under section 3 of the Customs Tariff Act, 1975 (51 of 1975) has been paid and no credit of such excise duty or additional duty of customs on inputs or capital goods has been taken by the manufacturer such goods (and not the buyer of such goods) under rule 3 or rule 13 of the CENVAT Credit Rules, 2004. 8. Thereafter, entry no. 199 was again amended by notification dated 26.07.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... els to assail the common order dated 10.05.2019 passed by the Commissioner (Appeals). The appeal filed by M/s. Kinjal Precious Pvt. Ltd. has been dismissed, whereas the other three appeals filed by M/s. Sumangalam Creations Pvt. Ltd., M/s. Lalita Jewellers and M/s. Ira Jewels have been remanded for re-quantification of the demand with reduced penalty. 11. Customs Appeal No. 52088 of 2019 has been filed by PP Alloys and Findings Suppliers to assail the order dated 06.06.2019 passed by the Commissioner (Appeals), by which the appeal has been dismissed. 12. Customs Appeal No. 52242 of 2019 has been filed by Derewala Industries Ltd. to assail the order dated 10.06.2019 passed by the Commissioner (Appeals), by which the matter has been remitted for re-quantification of the demand with reduced penalty. 13. A summary of the six appeals, the orders impugned, and the period involved is as follows: Sl. No. Customs Appeal No. Appellant Peroid Date of Appellate order 1. 52073/2019 Kinjal Precious Pvt. Ltd. 27.10.2015 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Articles of Jewellery and that the Articles of Jewellery and Parts of Articles of Jewellery made of Silver, Gold, Plantinum all are classifiable separately under respective sub heading of Customs Tariff. Since the Articles of Jewellery and Parts of Articles of Jewellery have specifically been classified separately in the Customs Tariff Act 1975, therefore, both the items can not be considered as one and same. 6. xxxxxxxxxxxx The adjudicating authority after discussing the various provisions of Notification No. 12/2012 CE dated 17.03.2012 as amended time to time has concluded that; (i) Articles of Jewellery and Articles of Silver Jewellery, whether studded with precious stones or not, were exempted from duty conditionally from 17.03.2012 to 28.02.2016. (ii) W.e.f. 01.03.2016, Articles of Jewellery were given concessional rate of duty @1% advalorem after fulfilling condition no. 16 of the Notification, whereas Articles of silver jewellery; other than those studded with diamond, ruby, emerald, or sapphire, continued to enjoy unconditional 'Nil' rate of duty. (iii) 'Parts of Articles of Jewellery' were also included in the exemption list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om inputs or capital goods on which appropriate duty of excise leviable under the First Schedule to the Excise Tariff Act or additional duty of customs under section 3 of the Customs Tariff Act, 1975 (51 of 1975) has been paid and no credit of such excise duty or additional duty of customs on inputs or capital goods has been taken by the manufacturer such goods (and not the buyer of such goods) under rule 3 or rule 13 of the CENVAT Credit Rules, 2004. 9. xxxxxxxx 10. From the above clarification, it is clear that the intention of the statue is that the conditions are to be satisfied by the manufacture only and not by the importer. Therefore, I hold that in the instant matter, fulfillment of the condition by the appellant is not required and the exemption of the notification on the Parts of Articles of Jewellery under Notification No. 12/12-CE dated 17.03.2012 as amended vide Notification no. 26/2016 CE dated 26.07.2016 are available w.e.f from 26.07.2016. I also find that period of demand involved in these four appeal are 12.10.2015 to 29.01.2016 in respect of appellant No.1, 23.10.2015 to 08.01.2017 in respect of appellant No. 2, 27.10.2015 to 28.12.2016 in respect of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of the adjudicating authority and the appellate authority that articles of jewellery do not include parts of articles of jewellery is correct, then all items of chapter 71, except parts of articles of jewellery would enjoy exemption from SAD and that cannot be the intent of the legislature. 19. Shri Rakesh Kumar, learned authorised representative appearing for the department, however, made the following submissions: (i) The appellant has not disputed the classification of the goods and the dispute is only as to whether the appellant could avail the benefit to the two exemption notifications; (ii) The goods involved in these appeals, namely gold/platinum/silver findings imported by the appellant are parts of articles of jewellery and that articles of jewellery and parts of articles of jewellery cannot be treated as one when they are classified separately under respective sub-headings of the Customs Tariff; (iii) The contention of the appellant that articles of jewellery would cover parts of articles of jewellery also as parts of articles of jewellery have not been included in the exemption notification is without any basis; (iv) The contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o parts of articles of jewellery cannot be accepted. It is for the legislature, in its wisdom, to grant exemption from payment of CVD or SAD and an assessee cannot be permitted to urge that if articles of jewellery have been granted the benefit of exemption from payment of CVD or SAD, the benefit of such exemption should necessarily flow to parts of articles of jewellery also. 25. The decisions of the Tribunal in Derewala Jewellery and V.K. International, on which reliance has been placed by the learned counsel for the appellant, do not support the case of the appellant. The issue involved in both the decisions was not whether parts of articles of jewellery would be also entitled to benefit of the exemption notification if the benefit of such exemption was granted to articles of jewellery. 26. An exemption notification has to be strictly construed and the burden of proving that the case falls within the parameters of the exemption clause or the exemption notification is on the assessee; and if there is any ambiguity in the notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the assessee and it must be interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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