ORDER
Jeet Ram Kait, Member (T)
1. This appeal is directed against the order in appeal C. Cus. No. 343/98 dt. 20.4.1998 by which the Commissioner (Appeals) has confirmed the order of the lower authority by rejecting the appeal on the ground that Cess is leviable as duty of excise under Section 5A of the Textile Committee Act 1965.
2. Brief facts of the case are that the appellants’ claim for refund of cess collected on imported Nylon yarn was rejected by the lower authority who held that additional excise duty equal to cess under the Textile Committee Act. 1963 as also additional excise duty (AED) under Goods of Special Importance Act, 1957 is leviable in view of the provision of Section 3 of the Customs Tariff Act 1975. The plea taken by the appellant was that cess was payable only on indigenously produced yarn and not on imported yarn.
2.1. When the matter was called, none appeared on behalf of the appellants. However, the appellants vide their letter No. Cus/04/C-60/96-97 dt. 7th September, 2002 submitted that they are unable to attend the personal hearing and prayed that the matter may be decided on merits in their absence taking into consideration the grounds mentioned in their appeal memorandum.
3. Ld. DR Shri C. Mani appearing on behalf of the Revenue pointed out that the issue is no longer res integra and the Tribunal had an occasion to consider the very product and rejected the same in the case of CC v. Birla Jute Industries reported and the Revenue appeal was allowed. The Tribunal had followed the Hon’ble Apex Court Judgment rendered in the case of Khandelwal Metal & Engineering Works v. UOI . He further invited our attention to the Hon’ble Gujarat High Court Judgment rendered on the very issue in the case of Vareli Textile Industries v. UOI wherein it has been held that countervailing duty is leviable on imported textiles in terms of law. He further submitted that the Hon’ble Gujarat High Court has followed the above noted Judgment of the Apex Court and the Tribunal. Ld. DR. further submitted that in the appellants’ own case, the Tribunal vide final order No. 557 & 558/2002 dt. 6.5.2002 rejected their refund claim and, therefore, he prays for rejection of this instant appeal also on the judgements cited supra.
4. On a careful consideration of the submissions made by the Ld. DR and on perusal of the records we notice that the issue is no longer res integra and the Tribunal had the occasion to consider the very argument raised by the party and the said arguments were rejected on the ground that the countervailing duty levied under Section (3) of the Customs Act 1975 has to be equal to the amount of excise duty. The Tribunal has also held that cess is also leviable under Section 3 of the Textile Commodity Act, 1963 being levied excise duty in the form of additional duty of customs (Countervailing duty) on imported textile machinery including fabrics. Therefore, respectfully following the judgements rendered by the Hon’ble Apex Court, High Court of Gujarat and the decision of this Tribunal in the appellant’s own case, we confirm the impugned order and dismiss the appeal filed by the appellants.
(order dictated and pronounced in open court)