2013 (8) TMI 581 - AT - Customs

Tribunal grants waiver, stays recovery, affirms duty exemption for solar projects under Notification No.1/2011-Cus.

APCA POWER PVT LTD & OTHS. Versus COMMISSIONER OF CUSTOMS, KANDLA

The Tribunal allowed the applications for waiver of pre-deposit and stayed the recovery of amounts confirmed by the adjudicating authority. It found the ... Validity of Confiscation order - Benefit of Notification No.1/2011 - issue involved in the case was regarding the differential duty of Customs which had been confirmed by the adjudicating authority by denying the benefit of Notification No.1/2011 - Held that:- Goods are prima facie eligible for benefit of Notification No.1/2011-Cus Extending the notification and acknowledges the fact that the goods are needed for solar power generation project or facility - the benefit of Notification No.1/2011-Cus, cannot be denied to such goods - the appellant can be considered as a person who was holding himself out to be an importer – confiscation order of the Goods was erroneous. Stay application and waiver of pre deposit - assesseee has made out a strong prima facie case for pre-deposit of the amount of duty, interest and the penalty imposed – pre- deposit amount waived – decided in favour of assesse. Issues:1. Waiver of pre-deposit of amounts confirmed by the adjudicating authority.2. Interpretation of Notification No.1/2011-Cus regarding Customs Duty exemption for solar power generation projects.3. Determination of importer status for M/s APCA Power Pvt. Ltd.4. Validity of confiscation of goods by the adjudicating authority.Analysis:1. The Stay Petitions were filed for the waiver of pre-deposit of amounts confirmed by the adjudicating authority. The amounts included duty, interest, and penalties imposed on various appellants. The grounds for confirmation were the alleged availing of ineligible benefits under Notification No.1/2011-Cus for Customs Duty exemption.2. The interpretation of Notification No.1/2011-Cus was crucial in this case. The appellants argued that they fulfilled the conditions of the notification, which exempted Customs Duty in excess of 5% for goods used in setting up solar power generation projects. They presented documents, including a certificate from the Ministry of New and Renewable Energy, to support their claim. The Tribunal found that the goods were intended for a solar power project, making them eligible for the notification's benefits.3. The issue of importer status for M/s APCA Power Pvt. Ltd. was debated. The definition of 'importer' under Section 2(26) of the Customs Act, 1962 was examined. The Tribunal concluded that M/s APCA Power Pvt. Ltd. could be considered an importer based on the definition, even if there were agreements like high sea sales involved. The Tribunal found that the appellant held themselves out as an importer and had a prima facie case for pre-deposit waiver.4. The validity of the confiscation of goods by the adjudicating authority was also addressed. The Tribunal disagreed with the confiscation, considering the goods prima facie eligible for the benefits of Notification No.1/2011-Cus. As a result, the Tribunal allowed the applications for waiver of pre-deposit and stayed the recovery of amounts until the appeal's disposal. The judgment highlighted the importance of fulfilling notification conditions and importer status in availing Customs Duty exemptions for specific projects.