Custom, Excise & Service Tax Tribunal
M/S Cst Ltd vs The Commissioner Of Central Excise, ... on 29 January, 2008
THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Appeals No: E/211-212/07 (Arising out of Order-in-Original No: 23/2006-Commr dated 26.12.2006 Passed by the Commissioner of Customs & Central Excise, Hyderabad) 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? Yes 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s CST Ltd., Appellant Vs. The Commissioner of Central Excise, Hyderabad Respondents
Appearance Mr V.J. Sankaran, Adv for the Appellants Ms Sudha Koka, SDR for the Revenue CORAM Dr. S.L. PEERAN, HONBLE MEMBER (JUDICIAL) SHRI T.K. JAYARAMAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 29.1.2008 ORDER No._______________________2008 Per Dr S.L. PEERAN The appellant was a sub-contractor and they had made supplies of goods to the Main contractor who is the competitive bidder for carrying on the International Contract granted to M/s BHEL to set up a Mega project for Kahalgaon Super Thermal Power Project . The revenue has proceeded to deny the benefit of Notification No 6/02 CE dated 1.3.02 as amended by Notification No 48/04 dated 10.9.04, which is under challenge. By Stay Order No 619 & 620/07 dated 2.8.07, the bench noted that the issue is covered in assessees own case by Final Order No 636 & 637/07 dated 6.6.07 and granted full waiver and listed the matter for final hearing.
2. Learned SDR files objection on behalf of the department. It is stated that the Revenue has not accepted the stated Tribunal Final Order and have filed writ petition before the Honble A.P. High Court. She submits that the impugned order may be confirmed. Learned counsel submits that there is no stay of the operation of the stated Tribunal Final Order. Therefore the Final Order No 636 & 637/07 dated 6.6.07 should be applied to the facts of the case.
3. We have carefully considered the submissions. We notice that this very issue was the subject matter in assessees own case and this bench by final order No 636-637/07 dated 6.6.07 decided the matter in assessees favour. The finding recorded in para 6 are reproduced herein below.
6. The learned Advocate brought to our notice the relevant conditions of the exemption Notification. In terms of Notification No. 48/2004, against Sl. No. 301, all goods supplied against International Competitive Bidding, falling under any Chapter are exempted subject to condition 64 of the Notification. Condition 64 reads as follows:-
6. If the goods are exempted from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under Section 3 of the said Customs Tariff Act when imported into India. It is not in dispute that the goods imported for supply to Mega Projects are entitled to whole duty exemption under Customs Tariff Act. The next thing to be examined is whether the goods supplied are against International Competitive Bidding. The appellants are a sub-contractor of M/s. BHEL. M/s. BHEL is executing the Mega Project for Kahalgaon Super Thermal Power Project by International Bidding. The appellants have submitted all the relevant records. The appellants are also found in the list of sub-contractors. Since the goods are supplied by the appellants to BHEL, who are executing the project by International Competitive Bidding, it is very clear that the goods cleared by the appellants should be considered as goods supplied against International Competitive Bidding. There is absolutely no need that the appellants themselves should have been the bidder in International Competitive Bidding. In huge projects, the main contractor does not do everything. There is always a system of sub-contractors. If we take a view that the goods cleared by sub-contractors are not entitled for exemption on the ground they are not the bidders, the very purpose of the Notification would be defeated because the main contractor will be having hundreds of sub-contractors in Mega Projects. In our view, inasmuch as the appellants had supplied the goods to M/s. BHEL, who are the bidders of International Competitive Bidding, the condition of the Notification is satisfied and there is no justification for denying the exemption notification to the appellant. The Tribunal, in the case of Automatic Electric Ltd. Vs. CCE, Mumbai 2004 (178) ELT 524(Tri.-Mumbai), has held that the benefit of exemption under Notification 108/95-CE is available to a sub-contractor when M/s. BHEL is the main contractor of an approved project. The fact that there was a contract between the main contractor and the sub-contractor will ensure that supplies made eventually reach the project site. The ratio of the above case is clearly applicable to the present case. In these circumstances, we set aside the impugned order and allow the appeals with consequential relief, if any. The apex court has not granted stay of the operation of the impugned order. Therefore we are bound by the finding recorded in Final order in the assessees own case noted (supra). Respectively following the same, the impugned orders are set aside and appeals allowed with consequential relief.
(Pronounced and dictated in open court) (T.K. JAYARAMAN)Member (T) (DR S.L.PEERAN) Member (J) /pnr/