Custom, Excise & Service Tax Tribunal
M/S Oppo Mobiles India Pvt. Ltd vs Cc, Delhi-I on 5 January, 2017
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi, Court No. 1 Date of hearing: 30.12.2016 Date of decision: 05.012017 Customs Appeal Nos. 52548 & 52557 of 2016 (Arising out of order in appeal No. CC(A) CUS/D-I/Import/ 449 to 474/ 2016 dated 24.05.2016 passed by the Commissioner of Customs (Appeals) New Delhi). M/s Oppo Mobiles India Pvt. Ltd. Appellant Vs. CC, Delhi-I Respondent
Appearance:
Sh. Abhinav Jaganathan, Advocate for the Appellant Sh. S. K. Sheoran, AR for the Revenue Coram:
Honble Mr. Justice (Dr.) Satish Chandra, President Honble Mr. B. Ravichandran, Member (Technical) Final Order Nos. 50033 50034/2017 Per: Justice (Dr.) Satish Chandra:
The present appeals have been filed against the order in appeal No. CC(A) CUS/D-I/Import/ 449 to 474 dated 24.05.2016 passed by the Commissioner of Customs (Appeals) New Delhi.
2. Brief facts of the case are that, the appellant has imported mobile phones and classified them under Tariff item 85171290 of the Customs Tariff Act, 1975 paying the additional customs duty @ 12.5% as provided under schedule-I of the Central Excise Tariff Act, 1985. The Notification No. 12/12-CE also provided a concessional rate of CVD @ 1% on import of mobiles phones classified under CTI 8517 subject to the condition No. 16 the Notification No. 12/2012-CE, that the manufacturer should not have taken credit under the Cenvat Credit Rules, 2004 in respect of inputs and capital goods. The department is of the view that appellant has not satisfied the condition, so no benefit was given to the appellant.
3. Subsequently, in SRF Limited vs. CC, Chennai 2012 (318) ELT 607 (SC), the Apex Court has interpreted the Condition No. 20 of Notification No. 06/2002-CE dated 01.03.2002 (Sl. No. 122) which was identical to Condition No. 16 of Notification No. 12/2012-CE. It was held by the Honble Apex Court that no question of availing CENVAT credit under the CENVAT Credit Rules, 2002 arises where inputs are procured from a country other than India. Thus, the Condition No. 20 must be considered to be fulfilled and, accordingly, the exemption from payment of CVD shall be available even in respect of imported goods. Now, the appellant has claimed the benefit of the ratio laid down by the Apex Court.
4. With this background, we heard Shri Abhinav Jaganathan, ld. Advocate for the appellant and Sh. K. Poddar, ld. AR for the Revenue.
5. We have gone through the material available on record. From the records, it is found that identical issue has come up before the Tribunal in the case of M/s L.G. Electronics India Pvt. Ltd. vs. CC, Delhi (Customs Appeal No. 52638 52698 of 2016), where it was observed that:
2. On import of these mobiles phones, the appellant was paying additional customs duty at the rate of 12.5% as provided under Schedule 1 of the Central Excise Tariff Act, 1985.
3. In this regard S. No. 263A (from 1.3.2015 onwards) of Notification No. 12/2012-CE also provided a concessional rate of CVD of 1% on import of mobiles phones classified under CTI 8517 subject to the condition No. 16 of Notification No. 12/2012-CE, that the assessee should not have taken credit under the CENVAT Credit Rules, 2004 in respect of the inputs and capital goods used in the manufacture of these goods.
4. However, owing to the consistent stand of the Department that the above mentioned condition could not be satisfied by imported goods, the appellant could not be satisfied by imported goods, the appellant could not claim the benefit of the said exemption. Finally, the Customs EDI system did not allow the Appellant to claim the benefit of the said exemption.
5. Being aggrieved, the appellant has filed the present appeal.
6. Heard Sh. S. Vasudevan, ld. Advocate appearing for the appellants and Dr. S. K. Sheoran, ld. DR appearing for the Revenue.
7. Shri S. Vasudevan, ld. Counsel relied heavily on the decision of the Tribunal in the case of M/s Sony India Pvt. Ltd. vs. CC (Import & General), New Delhi [ Final Order No. 55614- 55695/2016 dated 28.11.2016]. He also submits that the said issue has been examined by the Honble Apex Court in the case of SRF Ltd. vs. Commissioner of Customs, Chennai [ 2015 (318) ELT 607 (SC),, wherein the Honble Supreme Court has allowed the claim of the appellant.
8. After hearing both the parties and on perusal of the records, it appears that when the order in appeal was passed by the Commissioner (Appeals), the above mentioned judgments/ orders were not available. In other words, the orders passed by Honble Supreme Court as well as passed by Tribunal are subsequent to the impugned order. When it is so then we deem it fit to remand the matter to the original adjudicating authority to examine the claim of the assessee in the light of judgements (supra), for denovo assessment, but within a period of four months. The adjudicating authority is also directed to provide a reasonable opportunity of hearing to the appellant and appellants are at liberty to place additional evidence, if need be, as per law.
6. By following our earlier decision (supra) in the same terms, we remand the present appeals to the adjudicating authority to examine the claim of the assessee denovo within a period of four months but by providing an opportunity of hearing to the appellant. Additional evidence may be admitted.
7. In the result appeals are allowed by way of remand.
(Pronounced on 05.01.2017).
(B. Ravichandran) (Justice (Dr.) Satish Chandra)
Member (Technical) President
Pant