Custom, Excise & Service Tax Tribunal
(I) M/S. Jmc Projects (India) Ltd vs The Commissioner Of Central Excise on 25 July, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, BANGALORE SOUTH ZONAL BENCH COURT - I Stay & Appeal No: E/Stay/1034 & 1035/2011 in E/1656 & 1657/2011 (Arising out of Order-in-Original No: 2/2011-Adjn. C. Ex. (Commr.) dated 25.3.2011 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? No 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? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes (i) M/s. JMC Projects (India) Ltd. (ii) Shri Amit Raval, M/s. JMC Projects (India) Ltd. Appellant Versus The Commissioner of Central Excise Hyderabad-II Commissionerate Hyderabad. Respondent
Appearance Shri S.J. Vyas, Advocate for the appellant.
Shri Ganesh Havannur, Additional Commissioner (AR) for the Revenue.
CORAM SHRI P. G. CHACKO, HONBLE MEMBER (JUDICIAL) SHRI M. VEERAIYAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 25.07.2012 Date of decision: 25.07.2012 STAY ORDER Nos._______________________2012 FINAL ORDER Nos._______________________2012 [Order per: P. G. Chacko]. These applications filed by the appellants seek waiver and stay in respect of the adjudged dues. On a perusal of the records and hearing both sides, we are inclined to dispose of the appeals also finally. Accordingly, after dispensing with pre-deposit, we take up the appeals.
2. The appeal filed by the assessee-company is directed mainly against demand of duty of Rs.53,44,221/- on pre-stressed concrete girders/kerbs which were manufactured by the appellant and brought to a construction site and used in the construction of a flyover during the period from September 2006 to January 2009. The adjudicating authority denied to the assessee the benefit of Notification No.1/2011 CE (NT) dated 17.2.2011 issued by the Central Government under Section 11C of the Central Excise Act. The benefit was denied on the ground that the girders/kerbs were not manufactured at the construction site. The learned counsel for the appellant submits that the benefit of the said Notification should not have been denied on the said ground. In this connection, he has relied on a line of decisions.
(i) CEC-SOMA JV vs. CCE, Delhi-I: 2011 (267) E.L.T. 574 (Tri.-Del.) wherein a coordinate Bench of this Tribunal allowed the benefit of the above notification to the assessee in respect of certain prefabricated components of viaduct, after holding that the exemption was not to be denied on the ground that such components were fabricated elsewhere and brought to the construction site of viaduct. The Tribunals decision came to be upheld by the Delhi High Court vide CCE vs. CCE-SOMA JV: 2012 (280) E.L.T. 496 (Del.).
(ii) CCE, Jalandhar vs. Afcon Pauling JV: 2005 (180) E.L.T. 377 (Tri.-Del.) wherein the benefit of Notification No.5/98 CE was allowed to the assessee in respect of websols manufactured by them and brought to the construction site and used in the construction of flyover. This decision of the Tribunal came to be upheld when the Honble Supreme Court dismissed the civil appeal filed by the Commissioner of Central Excise, Jalandhar vide Commissioner vs. Afcon Pauling JV : 2005 (187) E.L.T. A68 (S.C.).
(iii) CCE vs. Rajendra Narayan: 2012 (281) E.L.T. 38 (Del.) wherein the benefit of Notification No.1/2011 C.E. (N.T.) was allowed to the assessee in respect of prefabricated components brought to Delhi metro rail construction site and used in the construction of elevated viaducts.
(iv) CP Meier vs. CCE: 2012 (280) E.L.T. 3 (Del.) wherein the benefit of Notification No.21/2006-C.E. was allowed to the assessee in respect of similar structural components which were manufactured by them and brought to the construction site and used in the construction of elevated viaducts.
Relying on the above decisions, the learned counsel for the appellants prays that the appeals be allowed.
3. We have heard the learned Additional Commissioner (AR) who had noted the case law. He also fairly admits that the facts of the instant case are similar to those of the cited cases.
4. In the above scenario, we have got to hold that the appellant-company is entitled to the benefit of Notification No.1/2011 C.E. (N.T.) dated 17.2.2011 which granted total exemption from payment of duty of excise on goods manufactured at site of construction for use in construction work at such site inasmuch as the girders/kerbs were admittedly manufactured at a site proximate to the site of construction of flyover and, on these facts, the cited decisions are in support of the appellant-company. In each of the cited cases, the structural components were manufactured by the assessee at sites proximate to the construction site, brought to the construction site and used in the construction of flyover/tunnel/viaduct. If the benefit of the notification is available to those assessees, the same cannot be denied to the appellant-company. In this view of the matter, we set aside the impugned order and allow these appeals. The stay applications also stand disposed of.
(Pronounced and dictated in open Court) (M. VEERAIYAN) Member (T) (P. G. CHACKO) Member (J) rv ??
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