AIDEK TOURISM SERVICES PVT. LTD.versusCOMMISSIONER OF CUSTOMS, NEW DELHI

                   [2015] 4 S.C.R. 295


         AIDEK TOURISM SERVICES PVT. LTD.                   A

                            v.
     COMMISSIONER OF CUSTOMS, NEW DELHI

             (Civil Appeal No. 2616 of 2001)                B

                    MARCH 19, 2015

         [A.K. SIKRI AND R. F. NARIMAN, JJ.]

     Customs Tariff Act, 1975: s.3(1) - Concessional rate of C
countervailing duty in terms of Notification no.64193-CE -
Eligibility for - Import of Honda accord cars manufactured
abroad for the purpose of assessee's business of tourism
which operates taxis to ferry the tourists from one place to D
another - Claim for concessional rate of CVD in terms of
said Notification - Held: The importer like the assessee is
deemed to be manufacturer of the said saloon car and
entitled to concessional rate of countervailing duty.

    Disposing of the appeals, the Court                     E

    HELD: 1. The proviso to Notification no.64193-CE
gives exemption of duty of 10% CVD in respect of
particular goods, namely, saloon cars, if such saloon
cars are used solely as taxis. [Para 7] [301-E]       F

     2. Section 3(1) of Customs Tariff Act, 1975 deals
with levy of additional duty, i.e. CVD, which is normally
equal to the excise duty that is payable on a like article,
if produced or manufactured in India. The explanation G
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

                           295                              H
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A     if produced or manufactured in India. The condition
      precedent for levy of additional duty thus
      contemplated by the explanation is that the article is
      produced or manufactured in India. The second limb
      to the explanation deals with the situation where 'a like
 B    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
C     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
0
      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
E     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
 F    what amount of excise duty was leviable thereon. - The
      levy under Section 3 of the Tariff Act is in the nature of
      a countervailing duty and is with a view to levy
      additional duty on an import to counter balance the
      excise duty payable on a like article indigenously
G     manufactured. It is now settled that the rate of duty
      would be only that which an Indian manufacturer
      would pay under the Excise Act on a like Article.
      Therefore, the importer would be entitled to payment of
      concessional/reduced or nil rate of countervailing duty
H     if any notification is issued providing exemption/
AIDEK TOURISM SERVICES PVT. LTD. v. COMMNR. OF 297
              CUSTOMS, N. DELHI

remission of excise duty for a like article if produced/ A
manufactured in India. [Paras 14, 15] [305-C; 308-B-H;
; 309-A; 310-E-F]

     Thermax Private Limited v. Collector of Customs
(Bombay), New Customs House (1992) 4 SCC 440: 1992        B
(3) SCR 943; Hyderabad Industries Ltd. & Anr. v. Union
of India & Ors. (1999) 5 SCC 15: 1999 (3) SCR 471 -
relied on.

    Collector of Central Excise, Jaipur v. J.K. Synthetics c
(2000) 10 SCC 393; Motiram Tolaram v. Union of India
CCE v. J.K. Synthetics(1999) 6 SCC 375: 1999 (1) Suppl.
SCR 82; Lohia Sheet Products v. Commr. Of Customs
(2008) 11 SCC 510: 2008 (J) SCR 948; Collector of
Customs (Preventive) v. Malwa Industries Ltd. (2009) 12 D
SCC 735: 2009 (2) SCR120; Commissioner of Central
Excise, New Delhi v. Hari Chand Shri Gopal & Ors. (2011)
1 SCC 236:2010 (13) SCR 820 - referred to.

                 Case Law Reference                       E
1999 (3) SCR 471         relied on           Para 10

(2000) 1o sec 393         referred to.       Para 10

1992 (3) SCR 943         relied on           Para 10      F
1999 (1) Suppl. SCR 82 referred to.          Para 15

2008 (3) SCR 948         referred to.        Para 15

2009 (2) SCR 120         referred to.        Para 15      G

2010 (13) SCR 820        referred to.        Para 16

   CIVIL APPELLATE JURISDICTION: Civil Appeal No.
2616 of 2001 etc.
                                                          H
298        SUPREME COURT REPORTS                    [2015] 4 S.C.R.


A         From the Judgment and Order dated 08.01.2001 of the
      Customs, Excise and Gold (Control) Appellate Tribunal, New
      Delhi in Appeal No. 183/2000-B.

                                  WITH
 B
          C. A. Nos. 7786-7787 of 2001, and 2271 of 2006

          S. Guru Krishnakumar, A. K. Panda, Prasana Venkat, S.
      R. Setia, Arijit Prasad,· Shweta Garg, Abhay Kumar, B.
      Krishna Prasad, for the appearing parties.
 c
          Rr-ex-parte.

          The Judgment of the Court was delivered by

        A.K. SIKRI, J. 1. In all these appeals the question of law
 D 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
 E 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
 F 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
 G 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
 H claim on the ground that it was eligible for concessional rate
AIDEK TOURISM SERVICES PVT. LTD. v. COMMNR. OF 299
        CUSTOMS, N. DELHI [A.K. SIKRI, J.]

of CVD in terms of the aforesaid Notification. In this refund A
claim the assessee sought ref1md 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 B
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. C
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 D
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, E
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             F
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         G
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          H
300       SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A  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
 B 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
C        conferred by sub-section (1) of Section SA 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
D        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.
 E
         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
 F       subject to the following conditions, namely:-

         (i) the manufacture at the time of clearance of such
         saloon car has paid excise duty calculated at the rate
         of 40% ad valorem;
G
         (ii) the manufacturer furnishes to the Assistant Collector
         of Central Excise a certificate from an officer
         authorised by the concerned State Transpqrt Authority
         in this behalf to the effect that such saloon car has been
 H       for use solely as a taxi, within three months of the date
AIDEK TOURISM SERVICES PVT. LTD. v. COMMNR. OF 301
        CUSTOMS, N. DELHI [AK. SIKRI, J.]

     of clearance of the said saloon car from the factory of A
     manufacture or such extended period as the said
     Assistant Collector may allow;

     (iii) the mani:facturer had not collected from the person
     in whose name such saloon car has been registered as        B
                  a
     a taxi, or in case had collected and has refunded to
     such person, the amount equivalent of such further
     exemption of duty, and

     (iv) the manufacturer files a claim for refund of duty in   c
     terms of section 11-B of Central Excise and Salt Act,
     1944 ( 1 of 1944)."

     7. What follows from the bare reading of the aforesaid
Notification is that exemption from customs duty is provided D
in respect of goods falling under Heading 87 .03 of the
Schedule to the Central Excise Tariff Act. 1985 (5 of 1986)
(hereinafter referred to as the Tariff Act'), which is in excess
of the amount calculated @ 40% ad valorem. Under
Heading 87.03, various kinds of goods are mentioned. E
However, proviso to this Notification gives exemption of duty
of 10% CVD in respect of particular goods, namely, saloon
cars, if such saloon cars are used solely as taxis. It is
subject to four conditions mentioned in the proviso.
                                                                 F
      8. Pertinently, this proviso mentions that the entitlement
of further exemption of duty of 10% is admissible to 'the
manufacturer of the said saloon car'. It is this expression
used in the said proviso which is the bone of contention.
According to the Revenue, only the manufacturer of the G
saloon car, which is imported and used solely as a taxi, is
entitled to additional exemption of duty of 10% CVD, as the
plain read of the provision manifestly suggests. The
submission of the assessee, on the other hand, is that for the
purpose of this proviso, the importer, like the assessee, is to H
302         SUPREME COURT REPORTS               [2015] 4 S.C.R.


A     be deemed as the manufacturer of the said saloon car. This
      is the short issue that needs determination.

       9. Before adverting to the respective arguments of the
  learned counsel for the Revenue as well as the assessee,
B we deem it proper to state the reasons given by the two
  Benches of CEGAT, rendering opposite decisions. In fact,
  as we take notice of these orders, it would become
  apparent as to how the two Benches have perceived the
  language of the same Notification, in the light of the same
C judgments, differently, and that will obviate the necessity of
  taking note of the arguments of the counsel for the parties,
  and those are the respective arguments of the counsel for the
  parties.

D      10. The argument of the assessee before the Mumbai
  Bench (or for that matter even before the Delhi Bench) was
  that the entire case had to be viewed from the philosophy
  behind the provisions of Section 3 of the Tariff Act, which
  was taken note of by the Apex Court in the case of
E Hyderabad Industries Ltd. & Anr. v. Union of India &
  Ors. 1 and Collector of Central Excise, Jaipur v. J.K.
  Synthetics2 , treating the importer as the manufacturer of
  such goods for the purpose of giving benefit of such
  Notification. Reliance was also placed on the judgment of
F this case in Thermax Private Limited v. Collector of
  Customs (Bombay), New Customs House 3 . The
  Mumbai Bench of CEGAT relied upon and extracted from
  the judgment of this Court in Thermax Private Limited
  (supra) and accepted the plea of the assessee thereby
G giving benefit of the Notification to the assessee. The Delhi

      1 (1999) 5 sec 15

      2 c2000) 1o sec 393
H     3 (1992) 4 sec 440
AIDEK TOURISM SERVICES PVT. LTD. v. COMMNR. OF 303
        CUSTOMS, N. DELHI [A.K. SIKRI, J.]

Bench, on the other hand, though took note of judgments in A
 Thermax Private Limited (supra) and Hyderabad
Industries Ltd. (supra), was of the opinion that those
judgments did not apply to the facts of this present case.
According to the Delhi Bench, the importer was to be
treated as manufacturer only to the extent of granting the B
benefit of levying CVD @ 40% in terms of the Notification
and the ratio of the said judgments could not be stretched to
hold that the importer is to be treated as a manufacturer for
the purpose of Notification No. 64/93-CE, which extends
further concession of 10% only to the manufacturers.          C

    11. From the aforesaid, it is clear that the entire case
hinges upon the ratio laid down in Thermax Private Limited
(supra) and followed in Hyderabad Industries Ltd. (supra)
as well as in J.K. Synthetics (supra).                       D

     12. In Thermax Private Limited (supra), the facts were
that the assessee had imported goods described as "Sanyo
Single Effect Chiller" from Japan for the purpose of using the
same for refrigeration/air conditioning of two factories. The E
assessee cleared the goods by paying customs duty as well
as additional duty leviable under Section 3(1) of the Tariff Act.
The customs duty had been paid on the imported goods
under customs tariff Item No. 84.17(1) at 40 per cent of the
value of the imported goods plus a surcharge of 25 per cent F
thereon. The rate of additional duty had to be determined on
the basis of Item 29-A(3) of the Central Excise Tariff and the
basic excise duty payable thereon was at 80 per cent of the
value of the goods under the above item read with
Notification No. 42 of 1984/C.E. dated March 1, 1984. G
However, Notifications (No. 93 of 1976/CE and 63 of 1985/
CE) provided a further concession of 25 per cent ad
va/orem provided conditions set out therein was fulfilled.
There was no dispute that the assessee was fulfilling other H
304         SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A conditions contained in column (5) of the said Notification,
  one of which was that the Chiller imported by the assessee
  was used in a factory - vide item (xiii). The Revenue,
  however, took the view that the second condition to claim a
  concession in CVD was not fulfilled, namely, the procedure
B specified in Chapter X of the Central Excise Rules, 1944
  (for short, the 'Rules') was not followed. Chapter X of the
  Rules deals with remission of excise duty on goods used for
  special industrial purposes. Rule 192 in the said Chapter
  provides that benefit under this Chapter would be claimed by
C a manufacturer. The primary reason for rejection of
  concessional duty, therefore, was that the assessee in the
  said case as importer of goods was not a manufacturer. In
  this context, the issue arose as to whether assessee could
  be treated as a manufacturer for the purpose of availing the
0
  concession under the Rules. The Court answered the
  aforesaid question in the affirmative deeming the importer as
  the manufacturer to make him entitled to get the benefit of the
  said Notification.
 E        13. The discussion in the judgment started with reference
      to Section 3(1) of the Tariff Act. As this provision applies in
      the present case as well, we take note of the same, which
      reads as under:
F          "3. Levy of additional duty equal to excise duty -      (1)
           Any article which is imported into India shall, in
           addition, be liable to a duty (hereafter in this section
           referred to as the additional duty) equal to the excise
           duty for the time being leviable on a like article if
G          produced or manufactured in India and if such excise
           duty on a like article is leviable at any percentage of its
           value, the additional duty to which the imported article
           shall be so liable shall be calculated at that percentage
           of the value of the imported article.
H
AIDEK TOURISM 8ERVICES PVT. LTD. v. COMMNR. OF 305
        CUSTOMS, N. DELHI [A.K. SIKRI, J.]

     Explanation. - In this section, the expression 'the         A
     excise duty for the time being leviable on a like article
     if produced or manufactured in India' means the excise
     duty for the time being in force which would be leviable
     on a like article if produced or manufactured in India,
     or, if a like article is not so produced or manufactured,   B
     which would be leviable on the class or description of
     articles to which the imported article belongs and
     where such duty is leviable at different rates, the
     highest duty."
                                                                 c
      14. This Section deals with levy of additional duty, i.e.
CVD, which is normally equal to the excise duty that is
payable on a like article if produced or manufactured in
India. However, it is a matter of common knowledge that
Notifications of exemptions have been issued by the Excise D
Department from time to time under Rule 8(1) of the Rules,
in the case of imported goods, for determining the leviability
of additional duty under Section 3(1) of the Act. In that case,
Notification No. 93/1976 was issued under Rule 8 of the
aforesaid Rules, which provides for a concession of 25% ad E
valorem, as already noted above. As per this Notification,
one of the conditions to be fulfilled was that of procedure
specified in Chapter X of the Rules. This Chapter provides
for - 'remission of (central excise) duty on goods used for F
special industrial purposes'. Rule 192, which appeared in
this Section, relates to 'application for concession' and a
reading of this Rule suggested that such application for
concession under Chapter X could be filed by a
manufacturer only. While holding that for the purpose of G
getting benefit of remission of CVD under the concession
notification, the importer shall be treated as manufacturer.
The Court gave the following rationale for holding so:

     "10 ... The benefit of Chapter X will no doubt generally    H
306   SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A     be claimed by a manufacturer in which event he will
      have to make the application, get the licence and give
      the assurances, bond or guarantee required by the
      Rules but it can also be claimed by other persons.
      The language of the Rule applies to any person, not
B     necessarily a manufacturer, wishing to obtain remission
      of duty sanctioned by a notification under Rule 8 on
      excisable goods in a speci.fied industrial process ...

      xx                       xx                        xx
c
      11. It will at once be seen that there is nothing in the
      scheme of the Rule which makes it inapplicable to an
      importer of goods. The assessee here has imported
      the goods and is selling them for use in a factory, a use
D     which qualifies for the concession under the Rule 8
      notifications. The types of use specified in the
      concessions notified could be of any kind and, even in
      the notifications under our consideration, there are
      many and varied. In respect of items falling under
E     serial Nos. 3 and 8, in particular, the actual users may
      be private individuals or authorities and need not
      necessarily be manufacturers using the goods in
      question in an "industrial process" in a narrow sense of
      that term. For instance, any computer room, hospital or
 F    factory purchasing parts of refrigerating and air-
      conditioning appliances and machinery for use in the
      computer room, hospital or factory would be entitled to
      claim the concession by following the prescribed
      procedure. Only. for claiming a concession in excise
G     duty the user should be the manufacturer himself or he
      must have made the purchase from a manufacturer
      liable to pay excise duty on the item whereas in regard
      to a claim for CVD concession. the supplier will be an
      importer. The latter will be entitled to sell the goods at
H
AIDEK TOURISM SERVICES PVT. LTD. v. COMMNR. OF 307
        CUSTOMS, N. DELHI [A.K. SIKRI, J.]

     the concessional rate of duty (or at nil rate if there is an   A
     exemption) if the purchaser from him who puts the
     goods to the specified use (whether a manufacturer or
      not) fulfils the requirements of Rule 192. Since the
     concession under Rule 192 turns only on the nature and
     use to which the goods ar eput by the user or                  B
     purchaser thereof and on whether he has gone through
     the procedure outlined in Chapter X. it would not be
     correct to deny it to a supplier of such goods on the
     ground that he is an importer and not a manufacturer.
     That aspect is provided for by Section 3(1) of C.T. Act        C
     which specifically mandates that the CVD will be equal
     to the excise duty for the time being leviable on a like
     article if produced or manufactured in India. In other
     )Nords. we have to forget that the goods are imported.         D
     imagine that the importer had manufactured the goods
     in India and determine the amount of excise duty that
     he would have been called upon to pay in that event.
     Thus, if the person using the goods is entitled to the
     remission, the importer will be entitled to say that the       E
     CVD should only be the amount of concessional duty
     and, if he has paid more, will be entitled to ask for a
     refund. In our opinion, the Tribunal was in error in
     holding that the assessees could not get a refund
     because the procedure of Chapter X of the Rules is             F
     inapplicable to importers as such.

                                         (emphasis supplied)"

     15. The ratio of the aforesaid judgment in Thermax
Private Limited (supra) was relied upon by this Court in G
Hyderabad Industries Ltd. (supra) while interpreting
Section 3( 1) of the Tariff Act itself; a/ beit in somewhat
different context. However, the manner in which the issue
was dealt with lends support to the case of the assessee H
308         SUPREME COURT REPORTS                   [2015) 4 S.C.R.


A     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
 B    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 is tht the article is produced or manufactured in
 C    India. The second limb to 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
 D    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
 E    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
 F     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
 G    thereon.

              It is thus clear from the reading of this judgment that
            the Court held that the levy under Section 3 of the Tariff
            Act is in the nature of a countervailing duty and is with
 H          a view to levy additional duty on an import to counter
AIDEK TOURISM SERVICES PVT. LTD. v. COMMNR. OF 309
        CUSTOMS, N. DELHI [A.K. SIKRI, J.]

    balance the excise duty payable on a like article A
    indigenously manufactured. The Court also adverted
    to the scope/effect of Section 3 of the Tariff Act,
    particularly the expression, "Excise Duty for the time
    being leviable on a like article in produced in India"
    and the explanation thereto. In this regard it observed B
    as follows: (At Para 11 of the Report)

     "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 C
     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 D
     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."

       The Court further referred with approval to the         E
rationale of the provision as laid down in Thermax case
(supra) in the following terms: (At Para 11 of the Report)

      " ... As observed by this Court in Thermax (P) Ltd. v.
      Collector of Customs (at SCC pp. 452-53, para 11)        F
      that Section 3(1) of the Customs Tariff Act:
       "specifically mandates that the CVD will be equal to
       the excise duty for the time being leviable on a like
       article if produced or manufactured in India. In other
       words, we have to forget that the goods are G
       imported, imagine that the importer had
       manufactured the goods in India and determine the
       amount of excise duty that he would have been
       called upon to pay in that event".
                                                               H
310         SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A           To our mind the genesis of Section 3( 1) of the
            Customs Tariff Act has been brought out in the
            aforesaid observations of this Court, namely, that for
            the purpose of saying what amount, if any, of additional
            duty is leviable under Section 3(1) of the Customs
B           Tariff Act, it has to be imagined that the articles
            imported had been manufactured or produced in India
            and then to see what amount of excise duty was
            leviable thereon."
c         This position has been reiterated in Motiram Tolaram
      v. Union of India'+, CCE v. J.K. Synthetics 5, Lohia Sheet
  Products v. Commr. Of Customs 6 and Collector of
  Customs (Preventive) v. Malwa Industries Ltd. 7 In fact,
  in Lohia Sheets and Malwa Industries cases (supra), this
o Court was considering exemption notifications envisaging
  use of certain material within a "factory" and still held that an
  importer would be entitled to the benefit of the exemption
  notifications in view of Section 3 of the Tariff Act and the
  decisions in Hyderabad Industries and Thermal cases.
E As such, it is now settled that the rate of duty would be only
  that which an Indian manufacturer would pay under the Excise
  Act on a like Article. Therefore, the importer would be
  entitled to payment of concessional/reduced or nil rate of
  countervailing duty if any notification is issued providing
F exemption/remission of excise duty for a like article if
  produced/manufactured in India.
          16. We may mention that in the case of Commissioner
      of Central Excise, New Delhi v. Hari Chand Shri Gopal
G     4 (1999) 6 sec 375

      5 (2000) 10 sec 393

      6 (2008) 11 sec 510

      7 (2009) 12 sec 735

H a (2011) 1 sec 236
AIDEK TOURISM SERVICES PVT. LTD. v. COMMNR. OF 311
        CUSTOMS, N. DELHI [A.K. SIKRI, J.]

& Ors. 8 , a three Judge Bench of this Court had raised A
certain doubts on the correctness of the principle contained
in Thermax Private Limited (supra) as well as in J.K.
Synthetics (supra) and referred the matter to a larger
Bench. Reference order is reported as (2005) 8 SCC 164.
The Constitution Bench decided the said case, which is B
reported as (2011) 1 sec 236. From the reading of para
39 to 41 of the said judgment it becomes clear that though
these cases were held not applicable to the fact situation and
were distinguished, the Court did not say that the aforesaid
judgments were incorrectly decided. In fact, by distinguishing C
the ratio of the said cases, the Constitution Bench impliedly
gave its imprimatur to the principle laid down in the aforesaid
judgments.

      17. We are of the opinion that since we are dealing with     D
exemption notification issued under Rule 8 of the Rules,
which was the position in Thermax Private Limited (supra)
as well, for the purpose of extending benefit of concession
contained in Notification No. 64/93-CE, the principle in
Thermax Private Limited (supra) would clearly become               E
applicable. We may point out that a specific query was put
to the learned counsel for the Revenue to the effect that if the
importer is not deemed as manufacturer for the purpose of
applicability of the said notification, then there cannot be a     F
situation where such benefit of this Notification would be
extended to any person, inasmuch as, it was almost
impossible to visualise a situation where a foreign
manufacturer would import the saloon cars in this country
and would utilise those cars for tourist taxis. Learned            G
counsel for the Revenue had no answer or reply to our query.
It is obvious that the purpose of exemption Notification No.
64/93-CE was to extend benefits to the importers of saloon
cars to use the said cars for tourist taxis. Going by the spirit
 and the objective behind this Notification, the irresistible      H
312          SUPREME COURT REPORTS           (2015] 4 S.C.R.


A     conclusion would be to apply the principle of Thermax
      Private Limited (supra) in the present case as well.

       18. We, accordingly, allow the appeal preferred by the
  assessee and reverse the order of the Delhi Bench of
B CEGAT. On the other hand, the view of the Mumbai Bench
  of CEGAT is upheld thereby dismissing the appeals
  preferred by the Revenue. Outcome of these appeals would
  be that the assessee shall be entitled to refund of 10% CVD
  paid by him.
c
           19. No costs.
      Devika Gujral                        Appeals disposed of.