Custom, Excise & Service Tax Tribunal
M/S Om Metals Spml Jv vs C.C.E. & S.T.-Jaipur-I on 15 December, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Stay Application No. E/50623 & 50624/2014 Ex[DB]
Appeal No. E/50500 & 50501/2014
[Arising out of Order-In-Appeal No. OIA No. 107-108(VC)CE/JPR-I/2013 dated: 30.08.2013 passed by Commissioner (Appeals-I), Jaipur]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Hon'ble Mr. Rakesh Kumar, 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?
M/s Om Metals Spml Jv Appellant
Vs.
C.C.E. & S.T.-Jaipur-I Respondent
Appearance:
Shri Rahul Tangri & Amit Jain, Advocate for the Appellants Shri M.S. Negi, AR for the Respondent CORAM:
Hon'ble Mr. Rakesh Kumar, Member (Technical) Hon'ble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing /decision: 15.12.2014 Final ORDER NO. 54982-54983 /2014 Per Rakesh Kumar (for the Bench):
The appellant had supplied radial gates, its parts, tools and tackles falling under chapter 73 of the Central Excise Tariff at nil rate of duty by availing full duty exemption under Notification No. 6/06-CE (Serial No. 91) to NHPC in connection with Parwati Hydro Electric Project Stage-III in the state of Himachal Pradesh. The supplies had been made against international competitive bidding and according to the appellant the goods if imported into India would be fully exempt from Customs Duty terms of notification No. 21/02-Cus (Serial No. 400) and in this regard a required certificate form Joint Secretary in the Ministry of Power has also been produced. The Commissioner denied the benefit of this exemption on the ground that the certificate produced is subject to fulfillment of certain conditions and it is not known whether those conditions have been fulfilled. The Original Adjudicating Authority confirmed total duty demand of Rs. 13,25,588/- by two separate orders. These duty demands were upheld by the Commissioner (Appeals) vide order-in-Appeal dated 13.08.2013 by a common order against which these two appeals have been filled along with stay applications.
2. Heard both the sides in respect of Stay application.
3. Though, the matter was listed for hearing of stay application, after hearing this matter for some time, the Bench was of the view that the matter can be heard for final disposal. Accordingly, the requirement of pre-deposit is waived and with the consent of both the sides the matter is heard for final disposal. Shri Amit Jain and Shri Rahul Tangri, Ld. Counsel for the appellants, pleaded that in the appellants own case for the previous period, the Tribunal vide Final Order reported in 2013 (298) ELT-79 has set aside the Commissioner(Appeals)s order and has allowed the appeal holding that the appellant would be eligible for exemption under notification no-6/06-CE (Serial No. 91) read with customs notification no. 21/02-Cus (Serial Non 400), that the objection of the department that the certificate produced does not indicate that the appellant have fulfilled the conditions for exemption, is not correct, as subsequently another certificate dated 07.07.2005 had been produced which clearly certifies that the Parwati Stage-III Hydro Electric Project set up by NHPC as interstate hydro power plant of capacity 500 MW or more and that power purchasing states have constituted regulatory commissions with full power to fix tariff, that power purchasing states undertake in principle to privatize distribution in cities in these states each of which as a population of more than one million within a period to be fixed by the Ministry of Power and that the power purchasing states have agreed to provide that states share of central plan allocations and other devolution towards discharge of any payment in respect of purchase of power, that the certificate produced by the appellants is in accordance with the provisions of notification, that the other objection of the department that the customs notification 21/02-Cus (Serial No. 400) exempts goods imported as project imports classifiable covered under customs tariff entry 98.01 while in his case the goods are covered under chapter 73 is not correct, as the Tribunal in the appellants own case for the previous period has considered this plea of the department and has rejected the same, and that in view of this, the impugned order is not correct.
4. Shri M.S. Negi, Ld. DR, defended the impugned order by reiterating the findings of the Commissioner(Appeals).
5. We have considered the submissions from both the sides and perused the records. On going through the impugned order, we find that the point of dispute and the facts are identical to the appellants own case for a different period decided by the Tribunal vide order dated 13.08.2013 reported in 2013 (298) ELT 79. In view of this, we hold that the impugned order is not sustainable. The same is set aside. The appeals as well as stay applications are allowed.
(Dictated and pronounced in open court) (Rakesh Kumar) Member(Technical) (S.K. Mohanty) Member(Judicial) Neha Page | 1