IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, NEW DELHI COURT NO. II Custom Appeal No. 913 of 2005-Cus. (Arising out of Order-in-Appeal No. 322/ACU/D-I/2005 dated 29.7.2005 passed by the Commissioner of Customs (Appeals), New Delhi) For approval and signature HONBLE MR. S.S. KANG, VICE PRESIDENT HONBLE MR. RAKESH KUMAR. MEMBER (TECHNICAL)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of the order?
4. Whether order is to be circulated to the Departmental authorities. M/s ITC Ltd. Appellant CC, New Delhi Respondent Appearance: Shri Ravi Raghvan, Advocate - For appellant Shri R.K. Verma, DR - For respondent CORAM: HONBLE MR. S.S. KANG, VICE PRESIDENT HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL) Date of Hearing: 17.6.2008 Order No..dated. Per S.S. Kang: The appellant filed this appeal against the impugned order whereby the benefit of Notification No. 30/2004-CE dated 9.7.2004 was denied.
2. The brief facts of the case are that the appellant made import of wool/acrylic/nylon sweaters and cardigans and filed a Bill of Entry claiming the benefit of Notification No. 30/2004-CE. The notification provides exemption from payment of excise duty in respect of specified goods provided that nothing contained in the notification shall apply to the goods in respect of which credit of duty on inputs or capital goods has been taken under the provisions of Cenvat Credit Rules.
3. The contention of the appellant is that the goods were imported into India, therefore, no credit has been taken in respect of input or capital goods used in the manufacture of goods. The appellant heavily relied upon the decision of Honble Supreme Court in the case of Lohia Sheet Products Vs. CC reported in 2008 (152) ECR 173.
4. The contention of the Revenue is that the appellant wants to avail the benefit of notification, therefore, are duty bound to fulfil the conditions of the notification. The benefit of the notification is not available in respect of goods in respect of which credit of duty on inputs and capital goods have been taken. In the present case, the appellant failed to fulfil this condition, therefore, the benefit of notification was rightly denied. The Revenue relied upon the decision of Honble Supreme Court in the case of Motiram Tolaram Vs. Union of India reported in 1999 (112) ELT 749. The Revenue relied upon the decision of the Honble Bombay High Court in the case of Ashok Traders Vs. Union of India reported in 1987 (32) ELT 262 and another decision of Honble Bombay High Court in the case of Gujarat Plastic Industries Vs. Union of India reported in 2003 (160) ELT 125. The Revenue relied upon the decision of Larger Bench of the Tribunal in the case of Priyesh Chemicals & Metals Vs. CCE reported in 2000 (120) ELT 259. The contention of the Revenue is that in the above decisions, the Honble Supreme Court and Honble High Court held that in case the condition of notification is not fulfilled the benefit of notification is not available.
5. We find that the appellant claimed the benefit of Notification No. 30/2004-CE. The condition of the notification is that the benefit is not available to the goods in respect of which credit of duty on inputs or capital goods has been taken. The appellant heavily relied upon the decision of Honble Supreme Court in the case of Lohia Sheet Products (supra) where the Honble Supreme Court allowed the benefit of Notification No. 8/96-CE. The notification provides that Nil rate of duty in respect of the copper waste and scrap used within the factory of production for the manufacture of unrefined or unwrought copper, copper sheets or circles and handicrafts. The copper waste and scrap were imported into India and the benefit of notification was denied, by the Revenue, on the ground that the same was not generated within the factory of production. In this situation, the Honble Supreme Court held that the imported scrap is entitled to exemption under Notification No. 8/96-CE the imported scrap was used within the factory of production as there is no condition under the notification that same should be generated in the factory of production. In the present case, we find that the condition of the notification is different. The condition is that benefit of notification is not available to the goods in respect of which credit of duty on inputs or capital goods has been taken, therefore, the ratio of the decision of Honble Supreme Court relied upon by the appellant is not applicable on the facts of the present case. We find that Honble Supreme Court in the case of Motiram Tolaram (supra) relied upon by the Revenue denied the benefit of notification where the concessional rate of duty is provided in respect of polyvinyl alcohol, if the same was manufactured from excise/CV duty paid on vinyl acetate monomer. The Honble Supreme Court held that as the said condition was not satisfied, therefore, the benefit of notification is not available. The same view has been taken by the decision of Honble Bombay High Court in the case of Ashok Traders (supra) and Gujarat Plastic Industries (supra). The Honble High Court held that in case the conditions of notification are not fulfilled, the benefit of notification is not available. The Larger Bench of the Tribunal in the case of Priyesh Chemicals & Metals (supra) also taken the same view. In the present case, as the appellant claimed the benefit of notification, therefore, they have to show that conditions imposed in the notification are fulfilled. The appellant had not produced any evidence or to show that conditions of the notification are fulfilled, therefore, we find no infirmity in the impugned order. The appeal is dismissed. (Operative part of the order pronounced in open Court) (S.S. KANG) VICE PRESIDENT (RAKESH KUMAR) MEMBER (TECHNICAL)
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