2018 (6) TMI 1243 - AT - Central Excise

Tribunal grants exemption for weighing machines & conveyors in non-conventional energy project

The Tribunal allowed the appeal in favor of the appellant, affirming their eligibility for exemption under Notification No. 6/2002-CE for the weighing ... Benefit of N/N. 6/2002-CE dated 01.03.2002 serial no. 237 read with list no. 9 under serial no. 16 and 21 of the said list - manufacture of weighing machines and conveyors - case of Revenue is that as per notification, the exemption is available only if the parts are captively consumed, therefore appellant not eligible for benefit of notification - Held that:- Since the show-cause notice has no allegation relating to Sl.No.16 of List 9 ibid and only seeks to deny exemption in terms of Item No.21 of the List 9 ibid, the allegations in the show-cause notice are not sustainable since the claim of the appellant on the basis of certificate issued by NCEDCAP is for exemption under Sl. No. 16 of List 9 of the said notification. This Tribunal in the case of Rachitech Engineers Pvt. Ltd. [2015 (6) TMI 823 - CESTAT NEW DELHI] had examined the question whether the chimneys manufactured by the appellant in that case and meant for bio-mass burning boiler were a part or device in the context of N/N. 6/2002-CE, where it was held that the device is a thing made for a particular purpose and as such the chimney meant for biomass fired boiler has to be treated as non-conventional energy device and hence benefit of notification allowed. The weighing machines and conveyors being integral part of Bio Gas Combustion Co-Generation Power Project as certified by the Managing Director of NCEDCAP has to be treated as non-conventional energy device in terms of item No.16 of list 9 of Sl.No.237 of N/N. 6/2002-CE. - appeal allowed - decided in favor of appellant. Issues:- Eligibility for exemption under Notification No. 6/2002-CE for weighing machines and conveyors supplied for a Bio Gas Combustion Co-Generation Power Project.Analysis:1. Facts and Background: The appellant, a manufacturer of weighing machines and conveyors, supplied these goods for a Bio Gas Combustion Co-Generation Power Project to M/s Non-Conventional Energy Development Corporation of Andhra Pradesh. The appellant claimed exemption under Notification No. 6/2002-CE, but the Revenue disputed the eligibility, leading to proceedings and imposition of duty and penalty.2. Appellant's Arguments: The appellant contended that the weighing machines and conveyors qualify for exemption under Sl.No.237, list No.9, Item No.16 of the said Notification. They supported their claim with a certificate from NCEDCAP and argued against being denied the exemption under Item No.21, emphasizing their eligibility under Item No.16 based on the nature of the goods.3. Revenue's Position: The Revenue maintained that the goods were not eligible for exemption as they were parts of the Bio Gas Combustion Co-Generation Power Project and not energy conversion devices. They referenced a previous judgment to support their stance.4. Larger Bench Reference: The issue of eligibility under the Notification was referred to the Larger Bench, which clarified that the appellant was claiming exemption only under Sl.No.16. The Division Bench was tasked with determining the eligibility under this specific entry.5. Examination of Show-Cause Notice: The Tribunal observed discrepancies in the show-cause notice, noting that while it referenced Item No.16, the department sought to deny exemption under Item No.21. The appellant's claim was based on a certificate specifically endorsing exemption under Item No.16, not Item No.21.6. Certificate and Endorsement: The appellants relied on a certificate from NCEDCAP recommending exemption for the machineries under Item No.16. The Superintendent of Central Excise also endorsed this certificate, affirming the eligibility for exemption.7. Precedent and Decision: The Tribunal cited a previous case where the exemption was granted for chimneys as part of a non-conventional energy device. Applying this precedent, the weighing machines and conveyors integral to the Bio Gas Combustion Co-Generation Power Project were deemed to be nonconventional energy devices under Item No.16.8. Conclusion: The Tribunal held that the order of the Commissioner (Appeals) disallowing the exemption was not sustainable. Consequently, the appeal was allowed in favor of the appellant, affirming their eligibility for exemption under Notification No. 6/2002-CE for the weighing machines and conveyors supplied for the specified project.