Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S. Pushpaman Forgings on 29 November, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/332/06 [Arising out of Orders-in- Appeal No. AT/516/RGD/2005 dated 29-9-2005 passed by the Commissioner(Appeals) Central Excise, Mumbai Zone-II] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) Honble Mr. 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 :
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?
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Commissioner of Central Excise, Customs & Service Tax, Raigad
:
Appellant
VS
M/s. Pushpaman Forgings
:
Respondent
Appearance
Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) for the Appellants
Shri. Prasad Paranjape, Advocate for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. Raju, Member (Technical)
Date of hearing: 29/11/2016
Date of decision 5/1/2017
ORDER NO.
Per : Ramesh Nair
The issue involved in the present case is that whether M.S. Forged Flanges, as parts/spares of the wind mill tower manufactured and supplied by appellant is eligible for exemption Notification No. 6/2000 dated 1-3-2000 as non conventional energy devices/systems.
2. Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) appearing on behalf of the appellant/Revenue reiterates the grounds of appeal.
3. Shri. Prasad Paranjape, Ld. Counsel for the Respondent submits that very same issue has been decided by this Tribunal in respondents own case which is reported as Pushpam Forging Vs. Commissioner of Central Excise, Raigad[2006(193) ELT 334(Tri. Mumbai)]. The said decision of the Tribunal has been upheld by the Honble Supreme Court in Civil Appeal No. D 24926 of 2005 vide Order dated 21-1-2006, whereby Revenues appeal was dismissed.
4. On careful consideration of submissions made by both sides, we find that the issue is no longer res integra as in respondents own case the issue has been decided by this Tribunal and the same was upheld by the Apex Court. The relevant order of the Tribunal is reproduced below:
?2.1The admitted position is M.S. Flanges are parts of Wind Mill Tower, which in turn is part of a WOEG following. (Tribunals decision in case of C.C.E. v. Techno Fab Manufacturing Ltd. - 2003 (158) E.L.T. 515 has held tower to be a part of the Wind Mill.
2.2Once tower is accepted and found and held to be part? of Wind Operational Electric Generator (WOEG for short) it is to be held that part i.e. flange of this part i.e. tower will be part of the whole i.e. Wind Generated Mill producing electricity from unconventional services. Every devices/systems part in this case having been specifically designed for that purpose in mind. That part of part is part of whole is well settled, relying upon [CCE v. Mahendra Engineering Works - 1993 (67) E.L.T. 134 followed in Bensel Industrial Corporation - 2000 (118) E.L.T. 119]. We find the flanges to be a part of WOEG.
?2.2The restriction being given to the exemption as part of the tower by reading Sr. No. 20 of lists, only on the grounds that flanges were not eligible since they were not consumed in the factory of production for the manufacture of tower has to be considered with the fact that tower of a Wind Mill being huge structures would only came into existence in the factory of manufacture as a design & in fact they would arise only infact at site after assembly using the flanges. Consumption at site in tower is not questioned on facts nor it can be said that flange is not used where the tower came into existence. The concept of interpretation of consumed in factory of production & limiting the same to the Central Excise registered premises of the appellants herein & deprive the use at site cannot be upheld.
?2.3In any case, the flange being part of tower which is Essential Component of Wind Operated Electrical Generator, an unconventional energy service device, would be eligible under Sr. No. 5 if not under 20 as part of Sr. No. 1 to 19. Coverage is also to be available under Sr. No. 13 of list 5.
?2.4The reliance placed on the decision of Damodar I. Malpani - 2002 (146) E.L.T. 483 (S.C.) & submission of invoices of other manufacturer having been exempted, is well founded. That would induce us to uphold the exempted status to be arrived in this case.
?2.5Classification declarations were filed by the appellant the goods M.S. Forged Flanges (Machined) with the exemption claim under Sr. No. 251 last 5 & Remark column having an Entry Wind Mills spares & parts (for wind operated electricity generators). We find when the Board has cast an obligation on the department vide Circular No. 124/35/95-CX. dtd. 10-5-95 to scrutinize the declaration, therefore the finding on suppression as arrived by the Ld. Adjudicator is this order, para 10, of deliberate omission of Sr. No. to involve the Proviso clause & lift the bar of limitation cannot be upheld. As the order does not indicate any other objection of the verification if any, done by the officers. Since the appellants belief of the product being covered on different Sr. No. was well founded & there was no stipulation of reporting the same. Surely if claim is entitled under alternate Sr. No. the same have to be granted. Suppression of fact cannot be arrived. Same has to be of a fact which would disentitle the claim of exemption, if revealed. No such fact is brought out in the order or pleaded before us. The bona fide belief & in view of Boards circular that part of Tower & Tower being part of Wind Operated Electricity Generators would favour the appellant with the bar of limitation to be available in his favour in this case.
?2.6When our findings on merits about eligibility to Notificate, & bar of limitation to be in favour of the appellants, we cannot find any reason to uphold any demands of duty or penalty or interest in this case. The same are set aside.
?3.1Consequent to our finding, this appeal is allowed setting aside the impugned order.
From the above decision of this Tribunal, it can be seen that the issue attained finality. Therefore appellant is entitle for the exemption under Notification No. 6/2000-CE in respect of their product namely M.S. Forged Flanges as parts/spares of the wind mill tower. We therefore uphold the impugned order and dismiss the appeal of the Revenue.
(Order pronounced in court on ______________ ) Raju Member (Technical) Ramesh Nair Member (Judicial) sk 2 E/332/06