Custom, Excise & Service Tax Tribunal
Unique Industrial Handlers Pvt. Ltd vs Commissioner Of Central Excise on 3 February, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II Appln. No.E/S/92005/14 APPEAL No.E/85005/14 (Arising out of Order-in-Appeal No.NSK-EXCUS-000-APP-283-13-14 dated 10/10/2013 passed by Commissioner of Central Excise (Appeals), Nashik) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Anil Choudhary, Member (Judicial) 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 :Yes 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? ========================================
Ms.Padmavati Patil, Advocate for appellant Shri.Ahibaran, Addl. Comm. (AR), for respondent CORAM:
Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr.Anil Choudhary, Member (Judicial) Date of Hearing : 03/02/2014 Date of Decision : 03/02/2014 ORDER NO Per: P.R.Chandrasekharan
1. The appeal and stay petition are directed against Order-in-Appeal No.NSK-EXCUS-000-APP-283-13-14 dated 10/10/2013 passed by Commissioner of Central Excise (Appeals), Nashik.
2. Vide the impugned order, the Ld. Lower appellate authority has upheld the duty demand of Rs.9,55,304/- along with interest thereon confirmed by the adjudicating authority vide order dated 28/06/2013 against the appellant M/s.Unique Industrial Handlers Pvt.Ltd. Nashik, by denying the benefit of Notification No.06/2006-CE dated 01/03/2006. The adjudicating authority has further imposed a penalty on the appellant under Section 11AC of the Central Excise Act,1944 read with Rule 25 of the Central Excise Rules, 2002. Aggrieved of the same, the appellant is before us.
3. The Ld. Counsel for the appellant submits that in this case the appellant had supplied Electrically Operated Traveling (EOT) cranes to NTPC, BARH Super Thermal Power Project as a sub-contractor of M/s.WPIL Ltd., Kolkata, who was awarded the contract for supply of equipment under International Competitive Bidding (ICB) procedure and therefore, in terms of the aforesaid notification, the appellant was eligible to supply the same without payment of Central Excise duty. The only condition required to be satisfied by the appellant was that the similar goods imported should be exempt from customs duties. It is the contention of the appellant that vide Notification No.12/2012-Cus dated 17/03/2012, the goods required for any Mega Power Project of capacity of 1000 MW or more are exempt from import duties subject to a certification given in this regard by an officer of the rank of a Joint Secretary to the Government of India in the Ministry of Power. In the present case, there is no dispute about the fact that NTPC, Barh Super Thermal Power Project to which the appellant supplied the goods satisfied this condition as certified by the Joint Secretary to the Government of India in the Ministry of Power that Barh Super Thermal Power Project in the State of Bihar has a capacity of 1000 MW or more. The only reason for rejection of benefit of exemption is that under the Customs Notification, the benefit is available to the goods falling under Chapter 9801 and the appellant has not participated in the International Competitive Bidding procedure themselves being sub-contractor. Therefore, the exemption would not be available. In this regard, the Ld. Counsel submits that this Tribunal in an identical matter pertaining to Kent Introl Pvt. Ltd. vide order No.A/983-984/13/EB/C-II dated 08/11/2013 had considered this issue and held that if the goods are supplied, under a contract awarded under International Competitive Bidding procedure, by the sub-contractor, the benefit of excise duty exemption cannot be denied so long as the similar goods imported under exempt from customs duty. The ratio of the above case would apply to the facts of the present case. Accordingly, he pleads for grant of stay.
4. The Ld. Additional Commissioner (AR) appearing for the revenue reiterates the findings of the lower authorities. However, he confirms that the issue is covered by the decision of this Tribunal in the case of Kent Introl Pvt. Ltd. case cited supra.
5. We have carefully considered the submissions made by both the sides.
5.1 After going through the records and hearing the arguments, we are of the considered view that the issue lies in a narrow compass and therefore, the appeal itself can be disposed of at this stage. Accordingly, after dispensing with the requirement of pre-deposit of the dues adjudged against the appellant and with the consent of both the sides, we take up the appeal itself for consideration and disposal.
5.2 Notification No.6/2006-CE grants exemption to all goods supplied against International Competitive Bidding falling under any chapter subject to the condition that the goods are exempted from customs duty when imported into India. In the case before us, the project authoritys certificate issued by the National Thermal Power Corporation clearly indicates that the supply of goods to the Barh Super Thermal Power Project is under the procedure of International Competitive Bidding and the contract has been awarded to M/s.WPIL. In the annexure to the said certificate, the appellants name figures as a sub-contractor for supply of EOT Cranes. Therefore, the condition that the goods should be supplied against International Competitive Bidding procedure is clearly satisfied. Vide Notification No.12/2012-Cus, goods falling under CTH 9801 is exempt if the same is supplied for any Mega Power Project of capacity of 1000 MW or more subject to a certification by the Joint Secretary to the Government of India in the Ministry of Power. The said certificate is available in record and it is clearly stated that Barh Super Thermal Power Project has a capacity of 1000 MW or more and satisfies all other requirements for grant of exemption. Therefore, we are satisfied that the appellant has complied with the terms and conditions of the exemption notification. In the Kent Introl Pvt. Ltd. case (cited supra), a more or less the identical issues arose for consideration and this Tribunal held that if the supply made under International Competitive Bidding procedure by a domestic manufacturer the benefit of exemption under Notification No.6/2006 would be available. The factual position in the present case as also those of Kent Introl Pvt. Ltd. are identical and therefore, we are of the view that the appellant is rightly entitled to the benefit of Notification No.06/2006-CE as amended. Consequently, the appeal is allowed. The appellant is also entitled to consequential relief, if any, in accordance with the law. Stay petition is also disposed of.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 6