Custom, Excise & Service Tax Tribunal
C.C.E., Jaipur vs M/S. Kamdhenu Ispat Ltd on 3 September, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Date of Hearing/decision: 03.09.2014
Cross Application No: E/Cross/150/2005 in
Appeal No. E/3116/2005 - EX[DB]
[Arising out of Order-in-appeal No.232(MPM)/CE/JPR-I/2005,dt. 09.08.2005, passed by Commissioner (Appeals-I), Central Excise- Jaipur]
For approval and signature:
Honble Mr. Justice G.Raghuram, President
Hon'ble Mr. Rakesh Kumar, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
C.C.E., Jaipur Appellants
Vs.
M/s. Kamdhenu Ispat Ltd. Respondent
Appearance:
Sh. R. Santhanam, Advocate - for the appellant Sh. Yashpal Sharma, DR - for the Respondent CORAM:
Honble Mr. Justice G.Raghuram, President Hon'ble Mr. Rakesh Kumar, Member (Technical) FINAL ORDER NO:-53566/2014 Per Rakesh Kumar:-
The facts leading to filing of this appeal and cross objection are in brief as under:-
1.1 The Respondent are manufactures of mild stone CTD Bars. During the period from April03 to June04, they supplied the CTD Bars free of duty under Notification No. 108/95-CE to various parties for supply to various projects of Rajasthan Urban Infrastructure Development Project, Jaipur (hereinafter referred to as RUIDP). The Respondent has submitted certificates issued by project Director, RUIDP, Jaipur, countersigned by Additional Chief Secretary (Finance) Govt. of Rajasthan, certifying that the material mentioned in the certificate is required for use of the said projects, and that the said project have been financed by Asian Development Bank (ADB) through loan, duly approved by Govt. of India for urban infrastructure development of six major cities of the state of Rajasthan. Though these certificates were not issued in the name of Respondent but the same mentioned the name of other parties to whom the Respondent have supplied CTD Bars. The Department was of the view that since the required certificate issued by the Designated Authorities as per the requirement of Notification No. 108/95-CE were not in the name of the Respondent, and the goods have not been supplied directly to the Asian Development Bank Financed Projects, the Respondent were not eligible for duty clearance of the goods under Notification No. 108/95-CE. It is on the basis that after issue of Show Cause Notice, the Jurisdictional Additional Commissioner of Central Excise vide Order-in-Original dt.31.03.2005 confirmed a total duty demand of Rs.48,38,972/- against the respondent along with interest thereon under Section 11AB and besides this imposed penalty of Rs.10,00,000/- on the Respondent under Rule 25 of the Central Excise Rule, 2002. On appeal being filed to Commissioner (Appeals) against this order, the same was allowed Vide Order-in-Appeal dt. 01.08.2005 was allowed. The Commissioner (Appeals) in this regard relied upon the judgment of the Tribunal in the case of Caterpillar India Pvt. Ltd. Vs. CCE. Pondicherry, reported in 2005 (185) ELT-430 (Tri. Del.) wherein the Tribunal held that denial of exemption under Notification No. 108/95-CE on the ground that goods were not supplied by him directly to the Project but were supplied to the Contractors of Projects, is not correct. Against this order of Commissioner (Appeals), this appeal has been filed by the Revenue and in respect of the Revenues Appeal the Respondent have filed a Cross-Objection. The Revenues appeal has been filed on the ground that in terms of condition of the Notification, the certificate issued by the Designated Authority must be in the name of manufacturers/suppliers and that the exemption in Notification No.108/95-CE would not have been available to the manufacturer/supplier who has not supplied the goods to the Project financed by World Bank of International Organization directly.
2. Heard both the sides.
3. Sh. Yashpal Sharma, Learned DR, assailed the impugned order by reiterating the grounds of the appeal and emphasized that since in this case, the required certificates were not in the name of the Respondent, they would not be eligible for the benefit of the exemption Notification.
4. Sh. R. Santhanam, Advocate, learned counsel for the Respondent, pleaded that the Honble Madras High Court in case of Commissioner of Central Excise, Pondicherry Vs. Caterpillar India Pvt. Ltd., reported in 2013(297) ELT-8 (Mad.), had decided this issue in favour of the Respondent, that in this judgment Honble Madras High Court has agreed with Larger Bench judgment of the Tribunal in case of Toyo Engineering India Ltd. Vs. Commissioner of Central Excise, Mumbai, reported in 2000(122) ELt-315 (Tri. Lb.), and that in view of this, there is no infirmity in the impugned order.
5. We have considered the submissions from both the sides and perused the records. The Respondent had supplied mild steel CTD bars for use in certain Projects financed by Asian Development Bank and being implemented by Rajasthan Urban Infrastructure Development Project, Jaipur. There is no dispute that the necessary certificates as per the requirement of the exemption Notification certifying that the goods supplied are required for the projects and that the projects are financed by the Asian Development Bank through loan and have been duly approved by the Govt. of India, have been produced. The only objection of the Department is that the Respondents name is not mentioned as supplier of the material in the certificates. But since it is not denied that the Respondent have supplied the material to the persons mentioned in the certificates and there is no allegation of diversion of the material supplied for any other purpose, in view of the judgment of the Honble Madras High Court in case of Caterpillar India Pvt. Ltd. (Supra), the benefit of the exemption cannot be denied. Therefore, there is no infirmity in the impugned order. The Revenues appeal is dismissed and the cross objection also stands disposed of.
(Operative portion of the order already pronounced in the open court) (Justice G.Raghuram) President (Rakesh Kumar) Member (Technical) S.Kaur 2