Custom, Excise & Service Tax Tribunal
M/S. Rithwik Energy Systems Ltd vs Commissioner Of Customs (Import), ... on 25 August, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/1358,1359 & 772/05 (Arising out of Order-in-Appeal No. 343-344/2005/MCH/DC/C.C/05 dt. 25.08.05 & OIA No. 221/2005 MCH dt. 27.5.2005 passed by the Commissioner of Customs (Appeals) Mumbai-I) For approval and signature: Honble Shri Ramesh Nair, Member (Judicial) Honble Shri Raju, Member (Technical) =======================================================
1. Whether Press Reporters may be allowed to see : No
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 : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
=======================================================
M/s. Rithwik Energy Systems Ltd.
M/s. Clarion Power Corporation Ltd.
M/s. Raghurama Renewable Energy Ltd.
:
Appellant
VS
Commissioner of Customs (Import), Mumbai
:
Respondent
Appearance
Shri Joseph Prabhakar, Advocate for Appellant
Shri Ahibaran, Additional Commissioner (A.R) and
Shri M.K. Sarangi Joint Commissioner (A.R.)
Appeared for M/s. Raghurama Renewable Energy Ltd. for respondents
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Honble Shri Raju, Member (Technical)
Date of hearing : 25/08/2016
Date of pronouncement : 2/09/2016
ORDER NO.
Per : Raju
The appellants M/s. Rithwik Energy Systems Ltd., M/s. Clarion Power Corporation Limited & M/s. Raghu Rama Renewable Energy Limited are in appeal against denial of the benefit of Notification No. 6/2002-CE dt.1.3.2002 for import of steam turbine and/or electricity generator imported by them under Project Imports (heading 98.01). The two issue which arose in the instant dispute are-
(i) If while availing the concessional rate of duty under Notification No. 21/2002-Cus. dt.1.3.2002, the appellants could simultaneously availed the benefit of Notification No. 6/2002-CE dt. 1.3.2002 for the purpose of CVD.
(ii) Whether the benefit of Notification No. 6/2002-CE dt. 1.3.2002, Sr. No. 237, List 9 Sr. No. 16 is available to the appellants. The benefit has been denied by lower authorities.
While in the case of M/s. Rithwik Energy System Ltd. and M/s. Clarion Power Corporation Ltd., the Order-in-Original as well as Order-in-Appeal denied the benefit on both the issues cited above specifically, in the case of M/s. Raghurama Renewable Energy Ltd. both the benefits have been denied in the Order-in-Original specifically, but Order-in-Appeal is silent on the second issue. Aggrieved by the said order, the appellants are in appeal before the Tribunal.
2.1. The Ld. Counsel for the appellants argued that in case of M/s. Raghurama Renewable Energy Ltd., the second issue has been discarded by the Commissioner (Appeals) in the impugned order as he has given no finding. Ld. Counsel argued that since Order-in-Appeal is silent on the second issue it amounts to granting relief on that issue.
2.2. Ld. Counsel argued that benefit of notification No. 6/2002-CE dt.1.3.2002 can be availed simultaneously with the benefit of Notification No. 21/2002-Cus. dt.13.2002 and there is no bar on availing the two notifications simultaneously. He relied on the Circular of CBEC wherein under similar circumstances benefit has been extended by board vide Circular No. 41/2013-Cus. dt. 21.10.2013. He argued that in the said circular clarifies that benefit of Notification No. 12/2012-Customs dt. 17.3.2012 can be availed simultaneously with the benefit of notification No. 46/2011-Cus. He argued that just like Notification No. 21/2002-Cus. dt. 1.3.2002, Notification No. 12/2012-Customs dt.17.3.2012 also prescribes both the Basic Customs Duty as well as the Additional Duty of Customs. Just like the present case Notification No. 6/2000-CE dt.1.3.2000, the notification No. 46/2011-Cus. dt. 1.6.2011, prescribes a different rate of CVD. Since the aforesaid Board Circular permits simultaneous availment of Notification No. 12/2012-Cus. dt. 17.3.2012 and Notification No. 46/2011-Cus. dt. 1.6.2011. The benefit of notification No. 21/2002-Cus. dt. 1.3.2002 and Notification No. 6/2000-CE dt. 1.3.2000 can be availed simultaneously.
2.3. Ld. Counsel further argued that the decision in the case of Triveni Engineering & Industries Ltd. Vs. Commr. Of C. Ex., Bangalore 2004 (172) E.L.T. 353 (Tri.-Bang.) has been given in the context of domestic manufacturer of turbine. He argued that the same cannot be applied for the purpose of import of goods. He further argued that turbine and/or generator have been imported for the purpose of use along with a boiler in which agricultural, agro-industrial and other specified wastes are converted into thermal energy, the turbine and/or generator are entitled to the benefit of Notification No.6/2000-CE dt. 1.3.2000.
3. The Ld. AR argued that the decision of Triveni Engineering & Industries Ltd. is applicable to both imports as well as domestic manufacturer. He argued that both turbine and/or generator can be used along with any source of steam. He further relied on the decision of Triveni Engineering & Industries Ltd. (supra) to assert that turbine and generator cannot be considered as device used to convert specified wastes into energy. He argued that waste is converted into thermal energy only in the boiler. He further argued that just because the Order-in-Appeal in the case of Raghu Rama Renewable Energy Limited is silent on the issue regarding availability of Notification No. 6/2002-CE cannot be said that the benefit of notification No. 6/2002-CE has been allowed.
4.1. We have gone through the rival submissions, we find that the Commissioner (Appeals) in the case of Raghu Rama Renewable Energy Ltd. has not given any specific finding on the issue regarding availability of Notification No. 6/2002-CE. dt. 1.3.2002 for the purpose of ascertaining the CVD applicable on the goods. However, the Order-in-Appeal specifically rejects the appeal filed by the appellant. It does not grant partial relief therefore it cannot be said that the Commissioner (Appeals) has allowed the benefit of Notification No. 6/2002-CE dt. 1.3.2002.
4.2. In view of above, we find that both the issues referred to in para 1 of this order are relevant for the purpose of determining the rate of CVD applicable to these goods. The Tribunal in the case of Triveni Engineering & Industries Ltd. (supra) has examined this issue and has observed as follows:
5.?We have carefully considered the submission made by both the sides. We find that the issue involved in this appeal is whether turbine is eligible for exemption under Notification No. 6/2000-C.E., dated 1-3-2000. We find that the appellants have claimed exemption under Sl. No. 251 of the table attached to the said Notification Sl. No. 251 reads as under :
Serial No. Chapter Heading Particulars Duty 251 Any chapter Non-conventional energy devices/ systems specified in List 5 Nil Sl. No. 16 of the List 5 is Agricultural, forestry, agro-industrial, municipal and urban wastes conversion devices producing energy. Thus it is clear that exemption is only to these devices which are using agricultural, forestry, agro-industrial, industrial, municipal and urban waste for converting these into energy. The Appellants are supplying steam turbines to M/s. Malavalli Power Plant Pvt. Ltd., for their bio-mass based power project to be set up at Mandya district. In this project the steam will be used for running the turbine which is connected to alternator and thereby generating electric power. This Project is approved by Ministry of Non-conventional Energy Sources. The steam turbines has been specifically designed and manufactured to match the output characteristics of the bio-mass boiler. The bio-mass fuel is obtained from the agricultural and industrial waste to generate steam in the boiler. Therefore bio-mass has been used for producing heat energy which is taken by the steam. Turbine itself, does not work on bio-mass. In all the cases in the past under the Notifications predecessor to the present notification, exemption was allowed only to the boilers where agricultural municipal and other wastes were used for converting the same in the boiler into heat energy. It is seen that all the decisions relied upon by the appellants are for exemption to boiler. The agricultural, industrial, municipal wastes etc., as given in the Notification is not used in the turbine for conversion of the steam into energy. The conversion of this waste into energy is only in the boiler. Energy can be converted from one form to another form. Therefore the heat energy is converted into mechanical energy, mechanical energy into electrical energy but the exemption is only for waste conversion devices producing energy from the waste material. Exemption is not for the system under this Sl. No. 16 of List 5. The waste material is used to create thermal energy. The exemption is only for these purposes and not for purposes of conversion of one form of energy into another form of energy. Therefore boiler is the only device where the agricultural, industrial etc. waste is converted into thermal energy. Thereafter this thermal energy is used. Therefore the exemption cannot be extended to turbine which converts heat energy into rotational energy (kinetic energy). Therefore, we are not convinced with the appellants plea that the turbine is eligible for nil rate of duty under Sl. No. 251 of Notification No. 6/2000, read with Sl. No. 16 of list of the said notification or under Notification 6/2002, dated 1-3-2002 read with Sl. No. 16 of List 9. We therefore do not find any merit in this appeal and the same is rejected and order of Commissioner (Appeals) is upheld. Honble Apex Court has also upheld the said decision as reported in 2015 (321) E.L.T A280 (S.C.) by observing as follow:
We have heard learned counsel for the parties at length.
We do not find any merit in these appeals, which are, accordingly dismissed. In view of above, we find that the benefit of Notification No. 6/2002-CE dt. 1.3.2002 cannot be extended to the appellants for the purpose of calculation of CVD.
6. In view of above findings, the first issue pointed out in first para above becomes irrelevant. The appeals are consequently rejected.
( Pronounced in court on 2/09/2016)
(Ramesh Nair)
Member (Judicial)
(Raju)
Member (Technical)
SM.
2
C/1358,1359 & 772/05