Case Law Details
Goyal Impex and Industries Ltd. Vs Commissioner of Customs (CESTAT Chennai)
CESTAT Chennai held that when the benefit of an exemption Notification is claimed, the claimant has to necessarily fulfil all the conditions prescribed under the said beneficial Notification. Thus, benefit of notification no. 30/2004-CE dated 09.07.2004 not admissible as all conditions not satisfied.
Facts- The undisputed facts of this appeal as delineated by the appellant are that appellant filed 11 Bills of Entry between 28.11.2015 and 18.01.2016 upon import of Polyester Knitted Fabric, claiming the benefit of Nil CVD in terms of Notification No.30/2004-CE dated 09.07.2004 as amended.
Revenue did not accept the appellant’s claim for benefit of Nil CVD as, according to it, the subject import of goods in question took place when the above notification was not available on account of the same being amended vide Notification No. 34/2015-CE dated 17.07.2015 and Notification No. 37/2015 dt. 21.07.2015.
Conclusion- Exemption Notifications are issued with a purpose and as we have observed elsewhere, some Notifications are absolute and some are conditional and when it is a conditional one, it is imperative that the condition/s therein ought to be satisfied in order to avail any benefit flowing therefrom.
Held that what the appellants claimed is the benefit of exemption. Hence, when an exemption is claimed, the claimant should necessarily satisfy the conditions prescribed under the Notification under which such exemption is claimed. Conveniently, the appellants have chosen to make the exemption claim under a Notification which was not in existence at the time of imports. Hence, the authorities below have rightly proceeded to examine the claim of exemption under the available / prevalent Notifications i.e., Notification Nos. 34/2015-C.E. and 37/2015-C.E. ibid., and admittedly, the appellants have nowhere whispered about fulfilling all the conditions of the said Notifications which replaced Notification No. 30/2004-C.E. The Hon’ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company [2018 (361) E.L.T. 577 (S.C.)] has clearly laid down that when the benefit of an exemption Notification is claimed, the claimant has to necessarily fulfil all the conditions prescribed under the said beneficial Notification.
Held that the claim of the appellants for the benefit of Notification No. 30/2004-C.E., as amended vide Notification No. 34/2015-C.E. and Notification No. 37/2015-C.E., is not entertainable and has therefore been correctly rejected by the Ld. first appellate authority. Hence, we do not find any case being made out for interfering with the impugned Orders-in-Appeal. The issue, therefore, is decided against the appellants.
FULL TEXT OF THE CESTAT CHENNAI ORDER
The undisputed facts of this appeal as delineated by the appellant are that appellant filed 11 Bills of Entry between 28.11.2015 and 18.01.2016 upon import of Polyester Knitted Fabric, claiming the benefit of Nil CVD in terms of Notification No.30/2004-CE dated 09.07.2004 as amended. Revenue did not accept the appellant’s claim for benefit of Nil CVD as, according to it, the subject import of goods in question took place when the above notification was not available on account of the same being amended vide Notification No.34/2015-CE dated 17.07.2015 and Notification No.37/2015 dt. 21.07.2015.
2. Heard Shri Shravan Kochar, Ld. Advocate and Shri Anoop Singh, Ld. Joint Commissioner for the Revenue, we have considered the rival contentions and we have given conscious consideration to the documents as well as judicial precedents relied upon by both the sides.
3. The only question that arises for our consideration is whether the appellant’s claim for benefit of Nil CVD in terms of Notification No.30/2004-CE is valid.
4. The appellant has mainly relied upon the decision of the Hon’ble Supreme Court in the case of SRF Ltd. Vs Commissioner of Customs, Chennai – 2015 (318) ELT 607 (SC) which decision has been followed by CESTAT also. He would draw our attention to paragraph 7 of the said decision which reads as under :
“7. We are of the opinion that the aforesaid reasoning is no longer good law after the judgment of this Court in ‘Thermax Private Limited v. Collector of Customs (Bombay), New Customs House’ [1992 (4) SCC 440 = 1992 (61) E.L.T. 352 (S.C.)] which was affirmed by the Constitution Bench in the case of ‘Hyderabad Industries Limited v. Union of India’ [1999 (5) SCC 15 = 1999 (108) E.L.T. 321 (S.C.)]. In a recent judgment pronounced by this very Bench in the case of ‘AIDEK Tourism Services Private Limited v. Commissioner of Customs, New Delhi’ [Civil Appeal No. 2616 of 2001 – 2015 (318) E.L.T. 3 (S.C.)], the principle which was laid down in Thermax Private Limited and Hyderabad Industries Limited was summarised in the following manner :-
“15. The ratio of the aforesaid judgment in Thermax Private Limited (supra) was relied upon by this Court in Hyderabad Industries Ltd. (supra) while interpreting Section 3(1) of the Tariff Act itself; albeit in somewhat different context. However, the manner in which the issue was dealt with lends support to the case of the assessee herein. In that case, the Court noted that Section 3(1) of the Tariff Act provides for levy of an additional duty. The duty is, in other words, in addition to the Customs duty leviable under Section 12 of the Customs Act read with Section 2 of the Tariff Act. The explanation to Section 3 has two limbs. The first limb clarifies that the duty chargeable under Section 3(1) would be the Excise duty for the time being leviable on a like article if produced or manufactured in India. The condition precedent for levy of additional duty thus contemplated by the explanation deals with the situation where ‘a like article is not so produced or manufactured’. The use of the word ‘so’ implies that the production or manufacture referred to in the second limb is relatable to the use of that expression in the first limb which is of a like article being produced or manufactured in India. The words ‘if produced or manufactured in India’ do not mean that the like article should be actually produced or manufactured in India. As per the explanation if an imported article is one which has been manufactured or produced, then it must be presumed, for the purpose of Section 3(1), that such an article can likewise be manufactured or produced in India. For the purpose of attracting additional duty under Section 3 on the import of a manufactured or produced article the actual manufacture or production of a like article in India is not necessary. For quantification of additional duty in such a case, it has to be imagined that the article imported had been manufactured or produced in India and then to see what amount of Excise duty was leviable thereon.”
(Emphasis supplied)
4.1 He would also contend that on the very same set of facts, the benefit of the above notification was extended to another importer viz. M/s. Aditya International Ltd. by the very same Commissioner (Appeals) and therefore the impugned order of Commissioner (Appeals) is manifestly illegal. Further, he has relied on following orders :
i. Final Order No. 40280 of 2019 dated 17.1.2019 in the case of Commissioner of Customs (Air), Chennai Vs. Sony India Pvt. Ltd.
ii. Final Order No. 50953 – 50954 of 2019 dated 24.7.2019 of CESTAT, New Delhi in the case of Artex Textile Pvt. Ltd. Vs. Commissioner of Customs, Patparganj and Ors.
iii. Final Order No. 51850 of 2019 dated 21.10.2019 of CESTAT, New Delhi in the case of Artex Textile Pvt. Ltd. Vs. Commissioner of Customs, Patparganj and Ors.
iv. Proceedings of the Hon’ble Supreme Court admitting the case of M/s. HLG Trading by grant of leave vide Proceedings dated 11.3.2019.
v. Final Order No. A/10106 – 10190 of 2022 dated 18.2.2022 of CESTAT, Ahmedabad in the case of Sedna Impex India Pvt. Ltd. Vs. CCE, Mundra.
vi. Final Order No. A/11267 – 11270 of 2023 dated 15.6.2023 of CESTAT, Ahmedabad in the case of Kunj Bihari Textiles Vs. CCE, Mundra.
vii. Final Order No. 50356 -50372 of 2023 dated 21.3.2022 passed by CESTAT, New Delhi in the case of Soir International and Ors. Vs. ACC, Patparganj.
viii. Proceedings of the Hon’ble Supreme Court in the case of Soir International Vs. Commissioner of Customs reported in 2023 (10) CENTAX 327 (SC) in Civil Appeal Diary No.22035 of 2023.
ix. 2023 (12) CENTAX 17- order of the CESTAT. Ahmedabad in the case of Artex Textile Pvt. Ltd. Vs. Commissioner of Customs, Mundra.
x. Final Order No. 40902 to 40911I2023 dated 12.10.2023 of CESTAT, Chennai in the case of HLG Trading and Ors.
5. Per Contra, Shri Anoop Singh primarily contended that the appellant had claimed the benefit of an exemption notification and therefore the appellant/claimant should satisfy all the conditions prescribed in an exemption notification, for which proposition he has placed reliance on the decision of Hon’ble Apex Court in Commissioner of Customs (Imports) Vs Dilip Kumar – 2018 (361) ELT 577 (SC).
5.1 He would also contend that vide the amending notifications, an additional condition was inserted as per which the goods should have been manufactured out of the inputs which had suffered Central Excise duty; since the appellant do not even claim that the import goods were manufactured out of duty-paid inputs, there is a clear non-fulfilment of the conditions in the exemption notification. The decision of SRF Ltd. (supra) relied upon by the appellant was much before the amending notifications and therefore the ratio is not applicable to the present set of facts.
5.2 Without prejudice to the above, he would also contend that the very purpose of levying CVD is to provide a level playing field to the domestic manufacturers and for this reason the CVD is levied as applicable to like goods when manufactured in India.
5.3 He would also rely on the decision of Madras High Court in Commissioner of Customs (Exports) Chennai Vs Prashray Overseas Pvt. Ltd. – 2016 (338) ELT 44 (Mad.) and M/s. HLG Trading Vs Union of India – 2016 (331) ELT 561 (Mad.). He would thus summarize that the decision of the jurisdictional High Court in the above two cases would prevail over the orders of CESTAT Benches relied by the appellant.
6. Admittedly, the appellant has claimed the benefit of exemption notification and hence, as mandated by the Hon’ble Apex Court, the burden is on the importer to adhere to the conditions prescribed in the exemption notification which is required to be strictly interpreted.
7. In his rejoinder, Ld. Advocate would submit that the decision of the Hon’ble High Court in the case of HLG Trading Vs Union of India (supra) has been challenged before the Hon’ble Supreme Court wherein the Hon’ble Apex Court has entertained the same by granting leave and converted the S.L.P as Civil Appeal. It is thus his submission that, the decision in HLG Trading (supra) is in jeopardy and cannot be the last word on the subject. He would also rely upon the decision of Hon’ble Supreme Court in Union of India Vs West Coast Paper Mills Ltd. – 2004 (164) ELT 375 (SC) to contend that once the leave is granted, the order of lower court / Tribunal is in jeopardy and therefore under judicial scrutiny and not free from doubt.
8. We find that in the case of HLG Trading and connected appeals, this very Bench had an occasion to consider more or less similar issue vide Final Order Nos.40902-40915 dated 12.10.2023 wherein it has been held as under :
“7.1 At the outset, given the undisputed facts, we do not find any reasons at all to interfere with the impugned Orders-in-Appeal since we find that the Hon’ble High Court of Judicature has analysed the law and the change brought about by subsequent Notification Nos. 34/2015 and 37/2015 ibid. has been followed. The Hon’ble High Court has in fact considered the following decisions in W.P. No.24507 of 2015 & ors. dated 30.10.2015 as reported in 2016 (331) E.L.T. 561 (Mad.) wherein two of the appellants namely, M/s. HLG Trading and M/s. Aditya International Ltd. were the petitioners: –
- Ahujasons Shawl Wale (P) Ltd. v. Commissioner of Cus., New Delhi [2015 (319) E.L.T. 576 (S.C.)]
- Aidek Tourism Services Pvt. Ltd. v. Commissioner of Cus., New Delhi [2015 (318) E.L.T. 3 (S.C.)]
- Ashok Traders v. Union of India [1987 (32) E.L.T. 262 (Bom.)]
- Collector of C.Ex., Vadodara v. Dhiren Chemical Industries [2002 (139) E.L.T. 3 (S.C.)]
- Collector of C.Ex., Patna v. Usha Martin Industries Ltd. [1997 (94) E.L.T. 460 (S.C.)]
- Commissioner of C.Ex., New Delhi v. Hari Chand Shri Gopal [2010 (260) E.L.T. 3 (S.C.)]
- Commissioner of C.Ex., Jalandhar v. Kay Kay Industries [2013 (295) E.L.T. 177 (S.C.)]
- Commissioner of Cus. (Prv.), Amritsar v. Malwa Industries Ltd. [2009 (235) E.L.T. 214 (S.C.)]
- Hyderabad Industries v. Union of India [1995 (78) E.L.T. 641 (S.C.)]
- Khandelwal Metal & Engineering Works v. Union of India [1985 (20) E.L.T. 222 (S.C.)]
- Motiram Tolaram Union of India [1999 (112) E.L.T. 749 (S.C.)]
- SRF Ltd. v. Commissioner of Customs, Chennai [2015 (318) E.L.T. 607 (S.C.)]
- Thermax Pvt. Ltd. v. Collector of Customs [1992 (61) E.L.T. 352 (S.C.)]
7.2 Though the vires of amended Notification Nos. 34/2015-C.E. dated 17.07.2015 and 37/2015-C.E. dated 21.07.2015 were challenged before the Hon’ble jurisdictional High Court, the Hon’ble High Court has held as under: –
… … …
77. But in cases where the exemption is only conditional, it is only those domestic manufacturers who fulfil the conditions, who will be entitled to the benefit of the exemption notification. A domestic manufacturer who does not fulfil the condition prescribed in the exemption notification, will not be entitled to the benefit of exemption.
… … …
82. An importer, if the argument of the petitioners are accepted, will have the benefit of the best of both the options. Since he is manufacturing goods outside the country, he would not have paid duty of Excise to the Government of India on the inputs used in his product. Nevertheless he would equate himself with a person who has not claimed CENVAT credit and avail the benefit of the exemption notification. The result is that a domestic manufacturer pays an extra amount of Rs. 100/-, in the example given above, while the importer does not pay anything. Neither Section 3 of the Customs Tariff Act, 1975, nor Article III of GATT required that an importer should be placed in a more advantageous position than the domestic manufacturer. The only requirement under GATT and even under Section 3 of the Customs Tariff Act is that the importer should not be put to a disadvantageous position than the domestic manufacturer. But what the petitioners want is to place the importer in an advantageous position. This is not permissible.
83. As we have indicated earlier, a challenge to a condition prescribed in an exemption notification can be tested only on very limited parameters. None of the parameters is satisfied in this case. The exemption notifications dated 17-7-2015 and 21-7-2015 are issued in exercise of the power conferred by Section 5A. Section 5A(1) itself empowers the Central Government to grant exemption either absolutely or subject to such conditions as they may stipulate. If the Central Government has the power to grant exemption subject to certain conditions, they have the power even to modify the conditions. This is why neither the source of power nor the method of exercise of such power is questioned by the writ petitioners. The impugned amendments are not in excess of the delegated power conferred under Section 5A(1). Therefore, at the outset, the amendments are not ultra vires Section 5A(1).
… … ….
90. As we have pointed out earlier, we are supposed to take an importer to be a domestic manufacturer of a like product by a deeming fiction. To this extent, the law is very clear and all the learned counsel for the petitioners are correct. Thereafter, the next question that we should ask is as to whether all domestic manufacturers would automatically be entitled to the benefit of the exemption notification. In respect of the exemption notifications that are absolute and unconditional, all domestic manufacturers will be entitled to the benefit of the exemption notification. Therefore, the importers will also be entitled. But, insofar as exemption notifications that are conditional in nature, the respondents will have to see whether all domestic manufacturers will automatically get exemption or some of them may not get exemption due to non-fulfilment of the conditions prescribed in the notification. If some of them are not entitled, due to non-fulfilment of the conditions, the importers, for whom it is impossible of complying with those conditions, are also not entitled to the benefit. It is this position that is sought to be clarified by the impugned amendment notifications dated 17-7-2015 and 21-7-2015.
Hence, there are no merits in the writ petitions.. ”
(Emphasis supplied)
8. We also note that in the case of Commissioner of Cus. (Exports), Chennai v. Prashray Overseas Pvt. Ltd. [2016 (338) E.L.T. 44 (Mad.)], the very Hon’ble jurisdictional High Court had gone into the very same issue and held as under:
“60. Hence, in fine, the propositions of law that would emerge out of the above discussion, can be summed up as follows :
(i) In cases where the exemption Notifications are absolute and they do not make the benefit available only upon the fulfillment of any condition, even the importer would be entitled to the benefit of exemption.
(ii) In cases where the Notifications for exemption stipulate only one condition namely that the inputs used in the manufacture of the exempted goods should have suffered a duty, then the benefit of the Notification will not be available to any of the importers, since he could have never paid any duty of excise on the inputs used in their manufacture by the foreign manufacturer. This proposition is based upon the premise that the object of such Notifications is only to grant exemption to those final products, on which, some duty has been paid (in India) at the stage of inputs. In other words, Notifications of this nature, are not merely conditional, but also restrictive in nature, as they confer benefit not upon all manufacturers of exempted goods, even if they are domestic manufacturers, but only upon those, who use inputs that had suffered duty.
(iii) In cases where the exemption Notification stipulates only one condition namely that no Cenvat credit ought to have been availed on the inputs, the benefit of the Notification will be available only to those, who satisfy two conditions namely that the inputs used by them suffered a duty and that they did not seek Cenvat credit. Since an importer can never satisfy the first condition, the second condition becomes inapplicable to him and he cannot be heard to contend that the inapplicability of the condition by itself would make him eligible for the grant of the benefit. (iv) In cases where the exemption Notification stipulates two conditions, namely that the inputs should have suffered duty and that no Cenvat credit should have been availed, then the benefit of the Notification will be available only if both conditions are satisfied. An importer will never be able to satisfy both these conditions and hence, he cannot claim the benefit. 61. Therefore, we answer both questions of law against the assessee. As a consequence, the appeals of the Revenue are allowed. No costs.”
9. We take note of the arguments of the Ld. Advocate in his rejoinder, that even against the said judgement in the case of Prashray Overseas Pvt. Ltd. (supra), Special Leave Petition has been filed before the Hon’ble Supreme Court, which has been admitted as reported in 2017 (355) E.L.T. A151 (S.C.).
10. The Ld. first appellate authority has only followed the binding decision of the Hon’ble High Court (supra) and therefore, we do not find any fault with the impugned orders. In view of the above, we do not find any merit in the contentions of the appellants.
11. We will now consider the doctrine of merger in the light of the admission / granting of leave to appeal, against the order of the Hon’ble High Court (supra).
12.1 In the case of Kunhayammed (supra), the Hon’ble Apex Court has, at paragraph 14, expressed its opinion as to the legal position emerging upon discussion and the relevant portion reads as under: –
“14. …
.
.
(3) If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him though in an appropriate case, in spite of having granted leave to appeal, the court may dismiss the appeal without noticing the respondent.
4) In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.”
12.2 From Sl. No. (4) (supra), it is clear that upon granting of leave to appeal, though the finality of the judgement, decree or order appealed against is put in jeopardy, it continues to be binding and effective between the parties unless it is a nullity or unless the court may pass a specific order staying or suspending the operation or execution of the judgement, decree or order under challenge.
12.3 Further, it is held at paragraph 39 as under: –
“39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two Judges Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the constitution, (ii) doctrine of merger, (iii) res judicata, and (iv) Rule of discipline flowing from this Court being the highest court of the land.”
13. The doctrine of merger was once again considered in the case of West Coast Paper Mills Ltd. (supra) and the relevant observations of the Hon’ble Apex Court are as under: –
“14. Article 136 of the Constitution of India confers a special power upon this Court in terms whereof an appeal shall lie against any order passed by a Court or Tribunal. Once a Special Leave is granted and the appeal is admitted the correctness or otherwise of the judgment of the Tribunal becomes wide open. In such an appeal, the court is entitled to go into both questions of fact as well as law. In such an event the correctness of the judgment is in jeopardy.
.
.
.
38. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit.”
14. There is no dispute that the Tribunal, as a lower judiciary, is bound by the decision of the Hon’ble jurisdictional High Court and the law laid down by the Hon’ble Apex Court being the law of the land, is always binding on all the lower courts.
15. After going through the observations of the Hon’ble Apex Court in the cases of Kunhayammed and West Coast Paper Mills Ltd. (supra), it is clear to us and there is also no dispute that once leave is granted to appeal, the impugned order therein does not become final. We therefore venture into the merits of the cases since, as contended by the Ld. Advocate, that issue in the present cases is open for consideration.
16.1 In the case on hand, going by the contentions, both verbal and written, the assessees-importers sought the benefit of Notification No. 30/2004-C.E. which was not available in the Revenue’s EDI system. Quite clearly, as on the date of filing the impugned bills-of-entry, there was a change in the law brought about by the amended Notification Nos. 34/2015 and 37/2015 ibid. and hence, the superseded Notification can never be available in the EDI system. What would be available is as per the amended law, that is, the new Notifications would replace the earlier Notification in the system as well. Hence, when a new law comes into effect, an importer can avail the benefit of such law only and if such law prescribes certain conditions, then it is incumbent upon such claimant to satisfy the conditions prescribed thereunder. He cannot be still heard to stake a claim for the benefit under an effaced Notification which is clearly not in vogue as on the date of import / filing of billsof-entry. To us, therefore, the change in law as brought about in the amended Notifications, has clearly been appreciated by the Hon’ble High Court in its judgement in the assessees’ own cases (supra), which has rightly been followed by the Ld. first appellate authority.
16.2 The prayer of the appellants even in the grounds-of appeal reveal clearly that they are seeking the benefit of an erstwhile Notification which stood duly effaced, but however, there is no claim made as to satisfying the conditions prescribed under the amended Notification Nos. 34/2015 and 37/2015 ibid. which were applicable. By the amending Notification No. 34/2015-C.E. dated 17.07.2015, the condition that was prescribed was as to the non-availment of CENVAT Credit on the inputs used in the manufacture of goods. The admitted position is that the importers i.e., the assessees before us, were not the manufacturers since the impugned goods were manufactured outside India and hence, it is quite obvious that no CENVAT Credit would be available to be availed on the impugned goods. Perhaps to this extent, it appears that the only condition in Notification No. 34/2015 stands satisfied with respect to the impugned goods, insofar as the appellants herein are concerned.
16.3 Per Notification No. 37/2015-C.E. dated 21.07.2015, yet another condition came to be inserted, which had the effect that Central Excise duty should have been paid on the inputs. This was perhaps impossible for the appellants before us, to have paid the Central Excise duty on the inputs used in the manufacture of imported / impugned goods since, admittedly, the impugned goods were manufactured outside the territory of India. Hence, we do not find any difficulty in assuming that the second condition could not be satisfied by the assessees-importers before us. The assessees also did not claim to have paid the Central Excise duty on the inputs used, but however, it is their only claim that it was an impossible task to fulfil the second condition and therefore the said condition should be ignored.
16.4 Exemption Notifications are issued with a purpose and as we have observed elsewhere, some Notifications are absolute and some are conditional and when it is a conditional one, it is imperative that the condition/s therein ought to be satisfied in order to avail any benefit flowing therefrom. Hence, it is also imperative on us to adopt purposive interpretation in such cases. If the claim of the appellants is to be entertained, then, the local manufacturers would be definitely put in a disadvantageous position as there may be increase in imports due to exemption. Thus, the purpose appears to us to be to encourage local manufacturers and therefore, the said conditions are put to restrict imports. Hence, we tend not to entertain such claims of the appellants who are only the importers. In this context, we refer to the decision of the Hon’ble Apex Court in the case of Rohitash Kumar & ors. v. Om Prakash Sharma & ors. [(2013) 11 S.C.C. 451] wherein the Hon’ble Court has clearly held that inconvenience of the taxpayer cannot be looked into: –
“19. In Bengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR 1955 SC 661 it was observed by a Constitution Bench of this Court that, if there is any hardship, it is for the legislature to amend the law, and that the Court cannot be called upon, to discard the cardinal rule of interpretation for the purpose of mitigating such hardship. If the language of an Act is sufficiently clear, the Court has to give effect to it, however, inequitable or unjust the result may be. The words, ‘dura lex sed lex’ which mean “the law is hard but it is the law.” may be used to sum up the situation. Therefore, even if a statutory provision causes hardship to some people, it is not for the Court to amend the law. A legal enactment must be interpreted in its plain and literal sense, as that is the first principle of interpretation.
20. In Mysore State Electricity Board v. Bangalore Woolen, Cotton & Silk Mills Ltd. & Ors., AIR 1963 SC 1128 a Constitution Bench of this Court held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.
21. In Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529, this Court, while dealing with the same issue observed as under:– “A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.” (See also: The Commissioner of Income Tax, West Bengal I, Calcutta v. M/s Vegetables Products Ltd., AIR 1973 SC 927; and Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659).
Therefore, it is evident that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical meaning to every word of the provision, if the language used therein, is unequivocal.”
17.1 Admittedly, what the appellants claimed is the benefit of exemption. Hence, when an exemption is claimed, the claimant should necessarily satisfy the conditions prescribed under the Notification under which such exemption is claimed. Conveniently, the appellants have chosen to make the exemption claim under a Notification which was not in existence at the time of imports. Hence, the authorities below have rightly proceeded to examine the claim of exemption under the available / prevalent Notifications i.e., Notification Nos. 34/2015-C.E. and 37/2015-C.E. ibid., and admittedly, the appellants have nowhere whispered about fulfilling all the conditions of the said Notifications which replaced Notification No. 30/2004-C.E. The Hon’ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company [2018 (361) E.L.T. 577 (S.C.)] has clearly laid down that when the benefit of an exemption Notification is claimed, the claimant has to necessarily fulfil all the conditions prescribed under the said beneficial Notification.
17.2 We are therefore of the view that the claim of the appellants for the benefit of Notification No. 30/2004-C.E., as amended vide Notification No. 34/2015-C.E. and Notification No. 37/2015-C.E., is not entertainable and has therefore been correctly rejected by the Ld. first appellate authority. Hence, we do not find any case being made out for interfering with the impugned Orders-in-Appeal. The issue, therefore, is decided against the appellants.
18. Resultantly, the appeals stand dismissed.“
9. We find that the finding in our order (supra) is applicable squarely to the facts of this case and hence following the same, we are of the view that the appellant is clearly not eligible to claim the benefit of Nil CVD in terms of Notification No.30/2004-CE (supra). We therefore do not find any irregularity committed by the lower authorities in denying the above claim and therefore the impugned order does not call for any interference. Resultantly, we dismiss the appeal.
(Order pronounced in the open court on 12.12.2024)
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