Judgment

Arjan Kumar Sikri, J.

1. In all these appeals the question of law which arises for determination is identical and even the Assessee is the same. However, it so happened that the same issue was considered by the Delhi Bench as well as West Regional Bench at Mumbai of the Customs, Excise and Gold (Control) Appellate Tribunal (for short, 'CEGAT') and they have given conflicting opinions. Insofar as Mumbai Bench of CEGAT is concerned, it has decided the issue in favour of the Assessee. However, the Delhi Bench, while taking a contrary view, which is in favour of the Revenue, has not agreed with the Mumbai Bench of CEGAT for the reasons mentioned therein, which shall be noted at the appropriate stage.

2. The issue relates to the eligibility for concessional rate of additional duty [also known as Counter Vailing Duty (CVD)] in terms of Notification No. 64/93-CE. The Assessee is in the business of tourism, which operates taxis to ferry the tourists from one place to another. Way back in the year 1995, it had imported Honda Accord cars and filed refund claim on the ground that it was eligible for concessional rate of CVD in terms of the aforesaid Notification. In this refund claim the Assessee sought refund of 10% of total CVD. The refund claim of the Assessee was rejected. Questioning the veracity of this decision of the Assistant Commissioner of Customs, Refund Department, Mumbai, as well as Delhi, the Assessee approached the Commissioner (Appeals) at both the places. The Commissioner (Appeals) in Mumbai allowed the appeal of the Assessee and granted the benefit of the aforesaid Notification with a direction to the lower authority to sanction the refund to the Assessee as claimed. Against this order, the Revenue preferred appeal before CEGAT. CEGAT, vide orders dated November 13, 2000 rejected the appeal of the Revenue. Against these orders, Revenue is in appeal.

3. On the other hand, in the proceedings emanating from the rejection of the refund by the Assistant Commissioner of Customs (Refund), New Delhi, the appeal of the Assessee was dismissed by the Commissioner of Customs (Appeals), New Delhi. This order of the Commissioner was challenged by the Assessee before CEGAT. The Delhi Bench of CEGAT, however, dismissed the appeal of the Assessee vide orders dated January 08, 2001. Against these orders it is the Assessee which has filed the appeals.

4. These are the reasons to hear all the appeals analogously as the question of law raised by the Revenue as well as the Assessee is common.

5. Before we advert to the view taken by the two respective Benches of CEGAT, it would be apposite to take stock of few facts which led to the controversy in issue, along with terms of Notification No. 64/93-CE dated February 28, 1993.

6. The admitted facts are that the Honda Accord cars imported by the Assessee were manufactured abroad. On the import of such cars, normally, CVD is payable @ 40%. This duty was paid by the Assessee at the time of clearance of the imported goods and refund of 10% was claimed seeking the benefit of Notification No. 64/93-CE. This Notification dated February 28, 1993 is reproduced below for the better appreciation of the dispute:

No. 64/93-C.E., dated 28.2.1993 as amended by No. 11/94-C.E. dated 1.3.1994: In exercise of the powers conferred by Sub-section (1) of Section 5A of the Central Excise and Salt Act, 1944 (1 of 1944), the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts all goods falling under heading No. 87.03 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) from so much of the duty of excise leviable thereon which is specified in the said Schedule as is in excess of the amount calculated at the rate of 40 per cent ad-valorem.

Provided that in a case where a saloon car after clearance has been registered for use solely as a taxi, the manufacturer of the said saloon car shall be entitled to a further exemption of duty of 10 percentage points s