Per : Shri A.K. Srivastava, Member (Technical) These appeals have been filed by M/s. E.I.H., Delhi (the appellants herein) against the Orders-in-Appeal No. 293 and 294/2000 dated 09.05.2000 passed by the Commissioner of Customs (Appeals), Mumbai. The Commissioner (Appeals), vide the impugned orders, rejected the appeals filed by the appellants and upheld the Orders-in-Original both dated 1.9.99 passed by the Deputy Commissioner of Customs, Group VB, New Custom House, Mumbai by which the Deputy Commissioner had ordered that the appellants are not eligible for the benefit of Notification No. 64/93 CE dated 28.02.93 and, therefore, rejected their refund claims.
2. Heard the learned SDR and perused the case records. None was present on behalf of the respondents inspite of notice. Since these are old cases of 2000, these are taken up for disposal by a common order as common facts and law are involved.
3. The brief facts of the cases are that the appellants have imported 12 Nos. Mercedes Benz Cars and filed Bills of Entry No. 635 dated 2.1.1996 and 3372 dated 9.1.1996. Goods were assessed to duty under Chapter heading No. 8703 at the rate of 50% + 40% + 1/8% cess, which was the standard rate of duty. After clearance of the goods, as assessed by the Customs, the Appellants felt that the Customs have charged 40% C.V. Duty instead of 30% which is leviable in terms of the Notification No. 64/93 dated 28/2/93 and filed the Refund Claim for refund of the Additional Duty to the extent of 10%, which culminated in the impugned orders as referred to above.
4. The appellants have relied upon the Honble Supreme Court Judgements in the cases of Hyderabad Industries Ltd. Vs. Union of India reported in 1999 (108) ELT 321 (SC) and Thermax Private Ltd. Vs. Collector reported in 1992 (61) ELT 222 (SC) in support of their claim that they are entitled to the benefit of exemption under Notification No. 64/93 CE dated 28.2.1993.
5. We find that an identical issue came up for consideration before the Tribunal in the case of Ramniranjan Kedia Tourism Services Pvt. Ltd. Vs. Commissioner of Customs, New Delhi reported in 2001 (42) RLT 717 (CEGAT) in which it was held that further exemption in terms of proviso to Notification No. 64/93CE dated 28.2.93 is not available to the imported cars as it applies to the manufacturer and the importer cannot be treated as a manufacturer. While holding so, the Tribunal distinguished the Supreme Court Judgements in the cases of Thermax Pvt. Ltd. and Hyderabad Industries Ltd. (Supra). Although the appellants have claimed that an appeal in the case of Ramniranjan Kedia Tourism Services Pvt. Ltd. has been filed before the Supreme Court and the same is pending yet they have failed to produce the copy of Order, if any, passed by the Supreme Court even after a lapse of more than eight years. We are in total agreement with the findings of the Tribunal in the case of Ramniranjan Kedia Tourism Services Ltd., Supra and accordingly hold that the benefit of exemption under Notification No. 64/93 CE dated 28.02.93 is not available to the appellants and, therefore, the question of grant of refund does not arise.
6. The impugned orders passed by the Commissioner (Appeals) are upheld. The appeals filed by the appellants are rejected. (Pronounced in court on ) A.K. Srivastava Member (Technical) Justice R.M.S. Khandeparkar President
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