Custom, Excise & Service Tax Tribunal
Rakhoh Enterprises vs Commissioner Of Central Excise, Pune-I on 13 August, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/88906/2013-Mum. & Appeal No. E/407/2009-Mum. & Appeal No. E/1813/2010-Mum. (Arising out of Order-in-Original No. PUN-EXCUS-001-COM-008-13-14 dt. 24.6.2013 and OIA No. IPL/04/NSK/09 dt.21/1/2009, & OIA No. AKP/NSK/191/2010 dt. 9.7.2010 passed by the Commissioner of Central Excise, Pune-I, Nashik ) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.S. Pruthi, 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?
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Rakhoh Enterprises
:
Appellant
Gemini Instratech Pvt. Ltd.
VS
Commissioner of Central Excise, Pune-I
:
Respondent
Appearance
Shri Prasad Paranjape, Advocate for Appellant
Shri V.K. Agarwal, Addl. Commr. (A.R) for respondent
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Mr. P.S. Pruthi, Member (Technical)
Date of hearing : 13/08/2014
Date of decision : /2014
ORDER NO.
Per : P.S. Pruthi
In this order three appeals are being decided together because the issue involved is essentially the same in all cases.
2.1 In the first appeal M/s. Rakhoh Enterprises (Rakhoh) were issued show cause notice denying the benefit of Notification No.06/2006 dt.1.3.2006 amended by Notification No. 12/2012 dt. 17.3.2012 to the excisable goods namely Anchor Rings and Load Spreading Plates (LSP) manufactured by them and cleared to M/s. Suzlon Gujarat Wind Park Ltd. Duty of Rs.5,36,83,121/- was confirmed for the period Feb 2008 Jan. 2013 along with equivalent amount of penalty under Section 11AC of the Central Excise Act, 1944 and appropriate interest under Section 11AB/11AA.
2.2. The second appeal relates to M/s. Gemini Instratech Pvt. Ltd. (hereinafter referred to Gemini), who were denied benefit of exemption under notification No. 6/2006 dt. 1.3.2006 on the goods namely, wind mill doors, manufactured by them and cleared during the period April 2008Sept-2008. The Commissioner (Appeals) upheld the order of Additional Commissioner in which demand of Rs.10,84,298/- was confirmed along with penalty of Rs.50,000/- under Rule 25 of the Central Excise Rules and appropriate interest was ordered to be paid. In the second order-in-appeal the Commissioner (Appeals) upheld the orders of lower authority confirming demands of Rs.47,59,163/- with penalty of Rs.2 lakhs under Rule 25 for the period October 2006 to March 2007 and demand of Rs.45,23,649/- with penalty of Rs. 2 lakhs for the period April 2007 to March 2008 and interest at appropriate rate under Section 11AB.
3. The facts of the case are mentioned below.
The notifications which are relevant in this case during different periods may be seen. The notifications No.205/1988, No.5/2005, No.6/2006 and notification No. 12/2012 exempted certain goods specified in the table attached to the notifications. The relevant abstract of the table to the notifications are reproduced below for convenience (a ) Notification No.205/1988-CE dated 25 May 1988 Exemption to certain specified goods connected with solar and other natural energy The Table Sr. No. Description of Goods
12. Wind mills and any specially designed devices which run on wind mills.
(b ) Notification No. 6/2002-CE. dated 01.03.2002 Table S. No. Chapter or heading no. or sub-heading no.
Description or goods Rate under The First Schedule Rate under The Second Schedule Condition No.
237. Any Chapter Non-conventional energy devices/systems specified in List-9 Nil
-
-
List 9 S.No.13 Wind operated electricity generator, it components and parts thereof (c ) Notification 5/2005-CE dated 1March 2005 In List 9, for item 13 and the entries relating thereto, the following shall be substituted, namely :-
(13) Wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller.
( d) Notification No. 6/2006-CE dated 1 March 2006 Table S. No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Condition No. 84 Any Chapter Non-conventional energy devices/system specified in List 5 Nil
-
List 5 Sr. 13 : wind operated electricity generators, its components and parts thereof including rotor and wind turbine controller
(e) Notification No. 12/2012-CE dated 17 March 2012 S.No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Condition No. 332 Any Chapter Non-conventional energy devices/system specified in List 8 Nil
-
List 8 Sr. (13) : Wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller.
3.1 It may be seen from the notifications that exemption is given to Non-conventional energy devices/systems specified in the list 5/list 8 of the respective notifications No. 6/2006 and 12/2012. The goods described in list 5/list 8 are :
Wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller.
3.2. In the case of Rakhoh it was held by the Commissioner that the exemption was limited to wind operator electricity generators (WOEG) and their components and parts. Although some components namely rotor and wind turbine controller were specifically included in the scope of the notification from 1.3.2006, even applying the basic principles of interpretation ejusdem generis, the scope of the entry can by no stretch of imagination include the whole WOEG system/windmill including the tower and foundation parts thereof. As the anchor ring and load spreading plates are used in the foundation of wind mill tower, they cannot be said to be components of WOEG. According to the Commissioner, WOEG is not the entire wind mill system but is only one of the parts of the Wind Mill system. On the issue of limitation, the Commissioner held that the monthly E.R.1 returns submitted by Rakhoh do not reveal the exact type and nature of goods manufactured and cleared for availing the exemption. In most of the returns the description of goods is mentioned as Other Articles of Iron & Steel. In some returns, the benefit of Notification No. 6/2006 is not claimed. In the returns for the period April 2008 to Jan. 2013, the benefit of Notification No. 12/2012 is not claimed. Therefore, there is suppression of facts. He relied on CESTAT decision in the case of Mahindra Sona Ltd. Vs. CCE Nashik (2012-TIOL-783-CESTAT-MUM). He justified imposition of penalty relying on the following judgments
(i) Malaysian Airlines Vs. UOI 2010 (262) ELT 192 (Bom.)
(ii) UOI Vs. Dharmendra Textile Processors 2008-TIOL-192-
SC-LB
(iii) Gujarat Travancore Agency, Cochin Vs. C.I.T. 1989 (42) ELT 350 (SC)
(iv) Rajasthan Spinning & Weaving Mills 2009 (238) ELT 3 3.3. In the case of Gemini, it was similarly held by Commissioner (Appeals) that wind mill doors cannot be considered to be part of WOEG as the doors do not take part in any way in generation of electricity by WOEG, the wind mill can function without the doors and the doors are fitted at the bottom of the tower for security and convenience only. He relied on the Honble Supreme Court decision in the case of M/s. United Cable Industries reported in 2002 (14) ELT A280 in which it was held that insulated cables are not parts of wind mill. He also relied on a similar decision of Honble Supreme Court in the case of Nicco Corporation Ltd. Vs. CCE Calcatta 2006 (203) ELT 362 (S.C.). The Commissioner went on to state that the Wind Mill doors were being cleared by classifying them under CTSH 73083000 as part of a structure and, therefore it cannot be claimed by Gemini that doors are part of the wind mills. He also referred to the statement of Shrikrishna Motiram Mahajan, Managing Director of Gemini, who stated that they had paid Customs duty while importing such doors which reveals that exemption to doors was not extended by Customs.
4. Heard both sides.
5. The Ld. Counsel for Rakhoh, Mr. Paranjpe explained the erection and the functioning of the wind mill and the wind operated electricity generator (WOEG) with the help of detailed drawings and pictures. From the drawings it was shown that the wind mill consists of a foundation embedment which is a foundation on which the tower is fixed. Typically the horizontal axis wind turbines comprise of a foundation, a tower, electrical equipment, nacelle, shaft and rotor and rotor blades. The nacelle is a casing that holds the gear box, generator, electronic control unit, yaw controller and brakes. The functioning of the wind mill works in the following manner : the rotor blades capture the wind energy and convert it to rotational energy of shaft to which the rotor blades are fixed. The shaft transfers the rotational energy into the generator. Then the role of the casing that holds the gear box, generator and electronic control unit comes into play. The gear box increases the speed of the shaft between the rotor hub and generator. The generator uses rotational energy of the shaft to generate electricity using electromagnetism principle.
5.1 It will not be necessary here to go into further details of the functioning of the system. It would suffice to know that the nacelle on which the rotor blades are fixed and which also contains the shafts etc. rests on the tower which may be as high as 40 to 80 mtrs. For the tower construction, generally a tubular construction of concrete or steel is used. The tower carries the weight of the nacelle and the rotor blades and the loads caused by the power of wind. It was further explained by the Ld. Counsel that the components of foundation embedment comprise of anchor rings, load spreading plates (LSP), anchor bolts and levelling screws. This foundation transfers the load coming from the nacelle, shaft, tower etc to the surrounding concrete. The LSP couples the tower base with the foundation by means of anchor bolts. The anchor bolts are the parts which hold the tower base and extend into the civil foundation. The anchor rings are applied at the other end of the bolts in the foundation of the tower and are embedded in the concrete foundation to provide a firm base to the WOEG.
5.2 Having discussed the erection and functioning of the wind mill, we may come to the main contention of the appellants. It is asserted by Ld Counsel that the LSP and anchor rings are integral parts of the wind operated electricity generator. They referred to the tender document under which they were awarded the work and explained that the work of tower foundation is referred in the tender document under heading WEG foundation and it is also mentioned that the anchor plates will be provided by the wind electric generator supplier. As per the technical literature issued to them by Suzlon, even in the guidelines issued by the Ministry of New and Renewable Energy, the tower and foundation are unambiguously understood to be parts of WOEG and further their parts in turn i.e. LSP and anchor rings, being integral to the foundation and tower will also be eligible for exemption. He referred to the provisional type certification scheme for wind turbine generator system in India released by the Ministry in which, under Chapter 3, definitions clause No. 3.40, the definition of support structure of wind turbine (WT) is given as part of WT comprising of tower and foundation. He also referred to the form prescribed by the Ministry to allow claim of exemption under Central Excise for parts of WOEG in which, against column 1 (f ) it is mentioned forged steel rings for manufacture of special bearings for use in wind operated electricity generator. According to them this indicates that the WOEG and wind turbine are interchangeably used in common trade parlance.
5.3. Reading the amendment of notification No. 6/2002 by notification 6/2006, by which the parts namely the rotor and wind turbine controller were specifically mentioned for exemption in the notification No.6/2006, Ld. Counsel stated that this only corroborates their stand that tower and foundation parts will also get exempted as part of WOEG because without a tower the WOEG cannot function. There is a difference in the foundation for WOEG and the foundation for other machinery for stability purpose, he stated. They relied on the case of Hiten Fastners Pvt. Ltd. in Order issued by Additional Commissioner, Mysore, which held that nuts and bolts used in WOEG are eligible for exemption and decision of Commissioner of Central Excise Raipur dt. 28.2.2005 referred by a Bench of the Tribunal in the case of Gemini Instratech Pvt. Ltd. 2013-TIOL-736-CESTAT-MUM. which allowed exemption to doors fitted in the tower. He further referred to case of Bharat Heavy Electricals Ltd. Vs. Collector of Customs Chennai reported in 1999 (108) ELT 448 (Tri.) and Hyundai Unitech Transmission Ltd. Vs. CCE, Nagpur reported in 2005 (187) ELT 312 (Tri.-Mum.) And the case of Pushpam Forgings Vs. Commissioner of Central Excise Raigad 2006 (193) ELT 334 (Tri.-Mum.) wherein the Tribunal held that once the tower is held to be part of WOEG and exempted, MS flanges which are part of tower will also be entitled for exemption.
5.4 . The Ld. Counsel referred to the clarification of Board vide F.No. 524/2/97-Cus (TU) dt. 5.8.97 stating that tower constitutes an essential component of WOEG and in the absence of tower, parts imported for the manufacture of WOEG cannot be said to be presented in unassembled/disassembled condition.
Lastly, the Counsel explained that the parts in question are not parts of general nature as held by the adjudication authority.
5.5. On time bar it was stated that the Tariff classification of the products being cleared under exemption, along with the name of the product and particular notification being availed, are all available on the ER.1 returns, which were being filed regularly every month. And therefore extended period is not invokable. He relied on certain judgments such as Sarita Sugars Vs. Commissioner reported in 2011 (267) ELT 562 (Tri.-Bang.). Also that penalty is not imposable unless the conduct on their part is dishonest as held by Apex Court in the case of Hindustan Steel Vs. State of Orisa reported in 1978 (2) ELT J159 (S.C.)
6. The case of the other appellant Gemini Instratech Ltd. is regarding availability of the exemption to windmill doors. That the wind mill door is fixed at the base of the tower there is no dispute. The Ld. Counsel for Gemini Instratech Ltd. argued that the wind mill door is part of the wind mill tower which in turn is a part of the WOEG. He emphasized that the doors are not ordinary doors but are specially manufactured for wind mills. The order placed on them by M/s. Enercon is for development of wind mill tower door assembly. He particularly referred to the decision of CESTAT in Pushpam Forging (supra), which considered the issue of MS Flanges and the decision was upheld by the Supreme Court. He also referred to Mumbai bench decision in their own case Gemini Instratech (supra) involving the same goods which was decided in their favour. The Ld. Counsel took us through various Judicial decisions, Boards Circular etc. We acknowledge the detailed arguments made by him backed by judicial pronouncements. However, no purpose would be served by repeating the arguments because they have already been mentioned above in the case of the other appellant.
7. Revenue reiterated the findings of the adjudicating authorities. The Ld . A.R. during the hearing presented a paper showing the structure and various components of a wind mill and its functioning. The same has already been detailed in paras above, so we may not repeat the facts again. The Ld. A.R. drew our attention to the Supreme Court judgement in the case of Uniflex Cables Vs. Commissioner of Central Excise, Surat reported in 2011 (271) ELT 161 (S.C) in which the Honble Court held that insulated electrical wires and cables designed for use in wind mills are not eligible for exemption under No.205/88 as parts of wind mills or any specially designed devices. He referred to the Advance Ruling Authoritys decision dt 18/3/2011 in the case of Enercon India in support of his stand.
8. We have carefully considered the submissions of both sides.
9. The short point to be decided is whether the LSP and anchor rings, and tower doors can be considered to be covered under wind operated electricity generator, its components and parts which are exempted under Notification No. 6/2006 We may refer to the term wind operator electricity generator as WOEG. The notifications No. 6/2006 and 12/2012 exempt non-conventional energy devices/systems specified in List-5/8 of the notfs. respectively. The corresponding goods specified in List-5/8 are wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller. It would be relevant to mention that the earlier notifications namely 6/2002, 3/2001, 6/2000 described the goods were exempted in lists under the respective notification as wind operated electricity generator its components and parts thereof. However, under Notification 6/2006, the exemption became available to wind operated electricity generator its components and parts thereof, including rotor and wind turbine controller. Thus, it is clear that it was the intention of Government to specifically include rotor and wind turbine controller as parts to which the exemption should also be available from 1st March 2006 vide Notification No. 6/2006. These parts are related more closely to, in fact they are directly integrated to, the process of generating electricity. Whereas the tower and foundation are not at all related to the actual process of generating electricity. If the intention was to include towers and foundation for exemption, they would have found specific mention too in Not. 6/2006. But it is not so.
10. We note that the wind mill or wind turbine as it is sometimes called, consists of rotors, shafts, nacelle (containing generator), tower, foundation etc. The Ld. Counsels for appellants have painstakingly argued that the tower doors, anchor rings and LSP are part of the WOEG. We are unable to agree with this view because the word generator in common parlance means nothing but the generator, itself, which in the present case is a specific part of nacelle that converts the wind energy into electrical energy through the shaft and gearbox. At most, the parts like shaft and electronic parts in nacelle could be considered as part of the generator. To view that the tower itself may be considered as part of the WOEG is a far fetched view. As explained by the appellant themselves, the tower provides stability for the load of the components mentioned above. In the present case, the parts in question namely Anchor rings, LSP and tower doors have nothing to do with the electricity generating system. The door at the base of the tower only facilitates entry to the tower for maintenance of the machinery etc. The LSP and anchor rings are only parts of the foundation on which the tower is fixed. It is inconceivable that the foundation and its parts namely anchor rings and LSP are parts of WOEG. It is attempted by the appellant to differentiate between this foundation and the foundation of other machineries. We do not agree with this differentiation. All foundations of machinery provide strength stability and prevent vibration in the sgtructre. The foundation in the present case is no different, even though it may be specially suited for a wind mill tower.
11. It was stated by the Ld. Counsel that various judicial pronouncements have allowed exemption to towers and their parts. No judicial pronouncement regarding exemption to foundation parts namely anchor rings and LSP has been shown to us. And here we would like to distinguish one fact which has not been appreciated by the appellants Rakhoh. Even if tower is considered to be part of the WOEG, which we dont agree with, we fail to understand how a foundation can be considered as part of the wind operated electricity generator. This is because the foundation includes steel items in concrete embedded in the ground. If appellants view is accepted, then every foundation e.g. foundation made for a D.G. Set would also be considered as part of the D.G. Set, which is not so. Or, for that matter, if we consider the electricity generating machinery in a thermal plant or a hydro electric plant, then the whole plants would be considered as generators which would be a fallacious view.
12. We are of the view that in case the intention of Govt. was to exempt towers and foundation and its parts, then the notification would have specifically exempted non-conventional energy systems/devices as a whole. Rather, the notification exempts only those non-conventional energy devices/systems which are specified in List-5. And list-5 mentions only wind operated electricity generator, its components and parts. A notification has to be construed by the language it uses. And the language of the present notification is clear. It does not require an extrapolated interpretation.
Further, we observe that List-5 to notification No. 6/2006 includes many non-conventional systems of energy, e.g. Solar air heating system, Solar crop drier system. It also includes individual items such as Solar cooker. Therefore, it is obvious that wherever the Government intended to exempt systems as a whole, it has done so. Therefore, it would be not justified to read the entry relating to WOEG as if it would cover the entire wind mill system. The parts such as tower may be essential parts of the system but they cannot be termed as components of a wind operated energy generator (WOEG). The appellants appear to argue that a wind turbine and generator are synonymous. Even if this be so it cannot be said that a wind turbine system and generator will also be synonymous. The exemption may be to a turbine but this does not imply that the exemption would automatically cover the support structure i.e. tower and the foundation. Otherwise, even turbines used in hydroelectric power plants or thermal plants could be said to include the structure in which they are housed. Therefore, we do not agree with the contention of the appellants.
It would be relevant to note the observations of the Honble High Court in this very case of Rakhoh in the stay matter. The High Court in its order dt. 25th February 2014 observed that prima facie the exemption is not to an entire wind mill system. Honble High Court stated that :
9. Having heard the learned Counsel for the appellant and the learned Counsel for the respondent-revenue, we are of the view that since none of the decisions relied upon by the appellant is directly on the items which are the subject matter of the present appeal, the same would have to be examined at the final hearing of the appeal. The notification granting benefit has also undergone changes from time to time. Moreover, prima facie the exemption is to one of the items of windmill system i.e. wind operated electricity generator and its components and parts and not an entire windmill system..
The Tribunal shall make an endeavour to hear and decide the appeal within 3-monts from the date the appellant makes pre-deposit of aggregate 25% of the total duty amount.
13. The Ld. Counsels have not been able to satisfy us that the terms wind mill (which includes tower and foundation) and wind operator electricity generator are synonymous or used interchangeably. The guidelines and the forms filed as per requirement of Ministry of New and Renewable Energy nowhere equate the two terms; in fact the Application form at Serial No. 1 (f) of the Ministrys format referred to by Ld. Counsel only refers to Forged Steel Rings for manufacture of special bearings for use in wind operated electricity generators. It does not refer to tower doors or foundation rings which are completely different items. It is our considered view that the doors, anchor rings and LSP do not fall under the phrase wind operated electricity generator.
14. We have seen the Board letter of 1997. But we find that during that period, the exemption was covered by notification 205/1988 dt. 25.5.1988 which at serial No. 12 of the Table to the notification granted exemption to wind mills and any specially designed devices which run on wind mills. Clearly the towers would be part of a wind mill and thus it was clarified that tower constitutes an essential component. The notification has since been amended. We are concerned with applicability of Notification No. 6/2006 and therefore Boards clarification of 1997 is not applicable in the present case.
15. We have gone through the judgements referred by the Counsel whereby doors and parts thereof are held to be eligible for exemption. We note that there is no specific ruling on the foundation components i.e. anchor rings and LSP. These, in any case, are items used in the foundation which cannot be considered as part of the wind operated electricity generator.
15.1 We have seen the earlier judgement in their own (Gemini) case passed by the Mumbai Bench. We note that the earlier judgement allowed the benefit to doors because it relied on judgements which allowed the benefit to towers and since doors are part of towers, it was held that exemption cannot be denied to doors. Our learned brothers also viewed that the Honble Supreme Court judgement in the case of Nicco Corporation (supra) was not applicable because the relevant notification at that time i.e. Not 205/88 dt 25 /05/1988 provided exemption to wind mills and specially designed devices which run on windmills. According to the Ld. Brothers in such situation it was held by SC that wires and cables are not entitled for exemption. We respectfully disagree with the view of Ld. Brothers because the wording in the present notification is even more restrictive whereas Notification 205/88 exempted parts of complete wind mills, the Notification 6/2006 presently under consideration exempts only wind operated electricity generator and parts. Tower doors are not part of the wind operated electricity generator. Supreme Court in the case of Nicco Corporation (supra) had held that wires and cables used in wind mills are not entitled for the exemption which was given to wind mills and devices. And therefore towers and their doors can by no stretch of imagination be considered as part of generator i.e WOEG. Which is only a part of a Wind Mill. Rather we find that Supreme Court agreed with the Tribunals view that insulated cables are not parts of wind mill even though wind mill may not be able to function without these cables. The same rationale may be applied in the case of doors. In fact in the present case it could even be said that technically the generator can run without the tower door. This would hold even if doors are specifically designed for wind mill towers.
15.2. The appellants have relied on the judgement of Pushpam Forging (Supra) which allowed exemption to flanges used in towers and against which order the civil appeal filed by the Department was dismissed by Honble Supreme Court on 20.1.2006. But this decision was not on merits. On the other hand, we find that in the case of Uniflex Cables Ltd. Vs. Commissioner (supra) which is a later decision pronounced in 2011, the Supreme Court referring to the case of Nicco Corporation (supra) held that the electric cables cannot be considered as parts of wind mills or any specially designed devices. As regards the case of Bharat Heavy Electricals (supra), that case related to a period when the notification granted exemption to wind mills and their parts. That notification did not exempt WOEG and their parts and therefore is not applicable to the facts of the case before us.
16. We note that the appellants Rakhoh state that they had filed monthly E.R.1 returns and therefore extended period is not invokable. They relied on various judgements too. The facts are different. We find that, as held by the adjudicating authority, the E.R.1 returns do not specifically mention the items anchor rings, LSPs for which exemption is being claimed. The judgements, cited, are not relevant to the facts of the case at hand. The appellant Rakhoh do not appear to have made a correct statement at para 11.4 of their grounds of appeal stating that the tariff classification of the products being cleared, name of product and particular notification being availed are available on the E.R.1 itself. We have seen the relevant returns for the months of February 2008, April 2009, April 2012 and December 2012 which have been enclosed at sr. No. 7 of written compilation (pages 19-22). We find that that it was only in the E.R.1 return of April 2012 that the appellants have declared specifically that they intend to clear anchor rings and LSP claiming exemption under notification No. 6/2006. In the other returns they have merely mentioned description of goods as articles of iron and steel. This description conceals the real identity and use of the goods. From this description it is not possible to know whether these goods are actually parts of and to be used in WOEG. Therefore, there is clear suppression of facts for not declaring the specific items for which they intended to avail exemption under notification No. 6/2006. In some returns the appellants have not claimed benefit of Notification No. 6/2006 or 12/2012. As regards the return for the month of April 2012 we note that the show cause notice in this case was issued on 1st March 2013. Therefore, the demand from April 2012 onwards is within the time limit under Section 11A (1) of the Central Excise Act as applicable during the relevant time. The demand for the period prior to April 2012 is sustainable under extended time period under Section 11A (4) of the Act. In the case of Gemini, the demand is within normal time period.
17. We do not consider these cases fit for imposition of penalty as Gemini had been declaring the goods namely wind mill doors in their ER-1 returns. Further there have been contrary judgements on the issue as to what may be considered as parts of windmill and WOEG.
18. In our view, benefit of exemption notification 6/2006 should be denied and duty demands along with interest must be upheld and penalties be set aside.
19. In the case of M/s. Rakhoh Enterprises the duty demand along with interest is upheld. However, penalty is set aside.
20. In the case of Gemini Instratech Pvt. Ltd. though we could have decided this case finally on the basis of our findings recorded above, as a matter of judicial discipline the matter may be placed before the Honble President for constitution of a Larger Bench because our view is contrary to the view taken by a Co-ordinate Bench in the matter of the same assessee for a different period. The issue to be considered by Larger Bench is framed as follows:
Whether a manufacturer is entitled to claim the benefit and exemption from Central Excise duty on wind mill doors under Notification No. 6/2006 dt. 1.3.2006 which grants exemption to wind operated electricity generator, its components and parts thereof including rotor wind turbine controller.
21. Registry is directed to place the records before the Honble President.
(Pronounced in court on )
(Ashok Jindal)
Member (Judicial)
(P. S. Pruthi)
Member (Technical)
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