TaxTMI 
TaxTMI 
2008 (8) TMI 953
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....in their thermal power plant for generation of electricity. The electricity so generated was supplied to the Tamilnadu Electricity Board (TNEB). The manufacturers/suppliers of LSHS had not paid duty of excise on the goods, availing the benefit of Notification No. 6/2002-CE dated 1.3.2002 (Sl. No. 29), which provided 'nil' rate of duty for LSHS, Residual Fuel Oil etc. of Chapter 27 of the CETA Schedule, cleared for use as fuel for the generation of electrical energy by electricity undertakings owned or controlled by the Central Govt. or any State Govt. or any State Electricity Board or any local authority or a person licensed under Part - II of the Indian Electricity Act, 1910 to supply electrical energy or a person who had obtained sanction under Section 28 of the said Act to engage in the business of supplying electrical energy, except those who produced electrical energy not for sale but for their own consumption or for supply to their own undertakings. The duty-free procurement of LSHS by the appellants was on the strength of "Annexure - I Certificates" issued under the 2001 Rules by the jurisdictional Assistant Commissioner of Central Excise. These certificate....
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....s from time to time on executing B-8 security bond and on furnishing a bank guarantee. The department has to follow the procedure under Section 35E for setting aside the Annexure-I certificate. Unless, the Annexure-I certificate is cancelled or rejected by the competent authority, by following the procedure under Section 35E, it is not permissible for the respondents to invoke Section 11A of the Act. Therefore, we are of the considered opinion that the issuance of show-cause notices are without jurisdiction and is liable to be struck down. The learned Counsel submitted that the above ruling of the Hon'ble High Court, rendered on a similar set of facts, was binding on this Bench of the Tribunal. In this connection reference was also made to East India Commercial Co. Ltd. v. Collector MANU/SC/0179/1962 wherein it was ruled that the law declared by a High Court was binding on all subordinate courts and tribunals. It was further pointed out that the benefit claimed by the appellants under Notification No. 6/2002-CE in the instant case was similar to the one claimed by M/s. Madurai Power Corporation Pvt. Ltd. under Notification No. 3/2001-CE. In both the cases, the benefit was avai....
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....ithout fulfilling the eligibility condition for this benefit, is not without jurisdiction. 5. It is not in dispute that permission was granted by TNEB to the appellants under Section 44 of the Electricity (Supply) Act, 1948 for establishing 250MW lignite-based thermal power plant. The electrical energy generated from the power plant was entirely sold to TNEB under a Power Purchase Agreement. It is the case of the appellants that their power plant was required to be run as per the control and direction of TNEB and hence they should be treated as an 'electricity undertaking controlled by TNEB', eligible for the benefit of Notification 6/2002-CE in terms of Sl. No. 29 of the Table annexed thereto. In support of this contention of the appellants, the learned Counsel referred to a letter dated 2.5.2002 of the Superintending Engineer of TNEB addressed to the Superintendent of Central Excise, wherein it was stated that, as per the terms of the Power Purchase Agreement, ST-CMS Electric Company was "coming under the effective control of TNEB". The expression "controlled" used in the Notification should derive its meaning from the context in which it is used. It ....
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....SC/1067/2004, wherein it was held that conditions attached to an exemption Notification had to be strictly construed. In this context, we have to examine the relevant entry in Notification No. 6/2002-CE, which reads as follows: S. No. Chapter or heading No. or subheading No. Description of goods Rate under the First Schedule Rate under the Second Schedule Condition No. (1) (2) (3) (4) (5) (6) 29 27 Residues of petroleum oils or of oils obtained from bituminous minerals, including heavy petroleum stock, low sulphur heavy stock and other residual fuel oils falling under heading No. 27.13 of the First Schedule, intended for use as fuel for the generation of electrical energy by electricity undertakings owned by or controlled by the Central Government or any State Government or any State Electricity Board or any local authority or a person licenced under Part II of the Indian Electricity Act, 1910 (9 of 1910) to supply electrical energy or a person who has obtained sanction under Section 28 of the said Electricity Act, to engage in the business of supplying electrical energy, except those who produce electrical energy not for sale but produce it for their own consumpt....
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....licable to a mandatory condition in any exemption Notification. The SDR also pointed out that it was open to the appellants to obtain a licence under Section 3 of the 1910 Act to supply electrical energy to TNEB inasmuch as that provision of law did not insist that a person holding the licence should supply electrical energy to the public. We have found substance in these arguments of the learned SDR. Section 3 of the 1910 Act provides for grant of licence to any person to supply energy in a specified area. The State Govt. may, on application made in the prescribed form and on payment of the prescribed fee, grant such licence to the applicant after consulting the State Electricity Board. Nowhere under this Section is there any prescription that the licensee should supply energy to the public. On the other hand, Section 28 of the Act provides that no person other than a licensee shall engage in the business of supplying energy to the public except with the previous sanction of the State Govt. and in accordance with such conditions as the State Govt. may fix in this behalf. It is further provided that the State Govt. shall not give such sanction except after consulting the State Elec....
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....Sl. No. 29 of Notification No. 6/2002-CE was a mandatory requirement to be strictly complied with and not a mere procedural requirement to be dispensed with. We hold that a person (not being electrical undertaking) claiming the benefit of exemption from payment of duty on LSHS intended for use as fuel for the generation of electrical energy should, as a pre-requisite, establish that he has been licensed under Section 3 of the 1910 Act to supply electrical energy or that he has obtained sanction under Section 28 of the said Act for engaging in the business of supplying electrical energy. He should, of course, establish also that he produces electrical energy for sale and not for captive consumption. These are mandatory requirements which cannot be dispensed with. The maxim lex non cogit ad impossibilia is not available to such a person as justification for non-fulfilment of mandatory requirements which are capable of being fulfilled. The case law cited by the counsel is not of any aid to the appellants. 7. We also find that, before the Department, the appellants never claimed under Section 3 (licence) or Section 28 (sanction) of the 1910 Act. They only claimed to be an "electr....
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....e First Schedule, intended for use as fuel for the generation of electrical energy by electricity under takings owned by or controlled by the Central Government or any State Government or any State Electricity Board or any local authority or a generating company or a person licenced under Part II of the Indian Electricity Act, 1910 to supply electrical energy or a person who has obtained sanction under Section 28 of the said Electricity Act, to engage in the business of supplying electrical energy, except those who produce electrical energy not for sale but produce it for their own undertakings. Nil 4 and 5 Explanation. - For the purposes of this exemption, "generating company" mens rea generating company as defined in Section 2(4A) of the Electricity (Supply) Act, 1948 (54 of 1948) and which has been granted consent/permission in writing under Section 44 of the Electricity (Supply) Act, 1948. The learned Counsel argued that as M/s. ST-CMS had already been recognized as "generating company" in the scheme notified under Section 29 of the Electricity (Supply) Act, 1948 way back in February 1994 and as they had permission in writing under Section 44 of the sa....
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....invocable for recovery of duty from the buyer of the excisable goods. The learned SDR countered by submitting that the appellants had executed bonds from time to time undertaking to pay duty on LSHS procured under Annexure - I certificates, in the event of failure to comply with the conditions of Notification No. 6/2002-CE. The show-cause notice was issued on this basis. The SDR also referred to the relevant records, which included copies of applications submitted by M/s. ST-CMS to the jurisdictional Assistant Commissioner of Central Excise under Rule 3 of the 2001 Rules from time to time. These applications contained their undertaking for payment of duty. The text of their undertaking contained in one such application is reproduced below: We also hereby undertake: a) to use the subject goods Low Sulphur Heavy Stock (LSHS) for the purpose of generation of Electrical Energy known as Electricity in ST-CMS Electric Company Private Limited, 250 MW LFPP, Uthangal Village, Vridhachalam Taluk, 607 804 and to follow any other condition that the said notification imposes on us; and b) to pay on demand, in the event of failure to comply with (a) above, an amount equal to the difference....
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....944) shall apply mutatis mutandis for effecting such recoveries. Under Rule 3, the appellants had undertaken (a) to use LSHS for generation of electricity and follow any other condition which the Notification imposed on them and (b) to pay on demand [in the event of failure to comply with (a)] an amount equal to the difference between the duty leviable on the goods (LSHS) but for the exemption under the Notification and the duty paid (if any) at the time of removal. The show-cause notice in question was issued under Rule 6 to demand duty in terms of (b) above on a ground relating to (a) above, i.e., on the ground that the party did not satisfy the mandatory condition of having to be (i) an electricity undertaking owned or controlled by the Central Government or any State Government or any State Electricity Board or any local authority or (ii) a person who had obtained licence under Section 3 of the 1910 Act or sanction under Section 28 of the said Act to supply electrical energy to TNEB. It also invoked Section 11A of the Central Excise Act which was applicable mutatis mutandis to a demand of duty raised under Rule 6. Section 11A provides for recovery of duty non-levied, non-paid,....