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Benefit of conditional Notification No 30/2004 is admissible for Silk Yarn & Silk Fabric imported - No error in Commissioner (A) order dropping demand - CESTAT dismisses revenue's appeals - Asks CBEC to include Notification in EDI

By TIOL News Service
CHENNAI, SEPT 08, 2015: THE dispute in the instant appeals is whether the respondent importers are eligible for the benefit of Notification No 30/2004 CE for the purpose of claiming exemption from CVD on the Silk Yarn and Silk Fabrics imported. The Notification has a condition that the manufacturer shall not avail CENVAT Credit on the inputs. The Commissioner (Appeals) extended the benefit of the Notification and dropped the demands, but the revenue is in appeal before the Tribunal.

It is the contention of the revenue inter alia that the Commissioner (Appeals)'s order is contrary to the Board's circular No.37/2001 dt. 18.6.2001 clarifying that the imported goods will not be eligible for the benefit of conditional Central Excise Notification, when it is not possible to verify the condition of the notification. In the case of Motiram Tolaram - 2002-TIOL-856-SC-CUS the apex court has laid down the law relating to complying with a condition precedent to an excise notification in case of an import. That was not brought to the notice of the Supreme Court in SRF case. It is contended that that Motiram Toleram case was again approved by the constitutional Bench in the case of Dhiren Chemical Industries - 2002-TIOL-83-SC-CX.

After hearing both sides, the Tribunal held:

Revenue relied on the Supreme Court's decision in the case of Motiram Tolaram Vs UOI and the Tribunal's Larger Bench decision in Priyesh Chemicals & Metals. In this regard the Supreme Court in their recent order in the case of SRF Ltd. Vs CC Chennai - 2015-TIOL-74-SC-CUS held that the appellants are entitled to exemption from payment of CVD under Notification No.6/2002 and allowed the civil appeal.

Revenue's plea that the Apex Court decision of SRF Ltd. and M/s.Motiram Tolaram are in direct conflict is not acceptable. Hon'ble Supreme Court has clearly considered all the previous decisions of Apex Court including the decision in the case of Motoram Tolaram Vs UOI. Therefore, the revenue relying on the above case law and also the LB decision in the case of M/s.Priyesh Chemicals & Metals are not relevant. In view of the latest decision of Apex court in SRF case & AIDEK Tourism Services Pvt. Ltd., the issue of CVD exemption under Notfn. 30/2004 on imported goods has attained finality. This Tribunal Bench decisions in the case of M/s.Prashray Overseas Pvt. Ltd. Vs CC Chennai stands confirmed by the Hon'ble Supreme Court in the above decision.

Before parting, it is brought on record that the respondents repeatedly pleaded that under ICES-EDI system the notification No.30/2004-CE dt. 9.7.2004 has not yet been uploaded and not figuring in the system for assessment even after a decade. This fact was already reported in this Tribunal order dt. 10.8.2010 in the case of M/s.Elegant Fabric Vs CC Chennai. Therefore, we bring to the notice of the Chairman, CBEC & DG (Systems), CBEC, New Delhi to rectify and upload the said notification in the EDI system at the earliest so that the Trade need not seek every time for manual assessment of Bill of Entry or file appeal against every assessed Bill of Entry under EDI before Commissioner (Appeals) as is happening at present in the Custom House.

(See 2015-TIOL-1887-CESTAT-MAD)


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