TaxTMI 
TaxTMI 
2020 (5) TMI 504
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....a Solar Products Pvt Ltd (formerly known as M/s Aura Electrochem Batteries Pvt Ltd) Survey No 143, Hissa No 1172, Vadagaon- Dhayari, Pune Sinhagad Road, Pune 411041. 2. I confirm demand of and order recovery of Central Excise duty of Rs. 36,89,995 (Rupees Thirty Six Lakhs Eighty Nine Thousand Nine Hundred and Ninety Five only) from M/s Aura Solar Products Pvt Ltd (formerly known as M/s Aura Electrochem Batteries Pvt Ltd) Survey No 143, Hissa No 1172, Vadagaon- Dhayari, Pune Sinhagad Road, Pune 411041 under proviso to sub section (1) of Section 11A of CEA, 1944. 3. I also order recovery of interest as applicable on delayed payment of Central Excise duty from M/s Aura Solar Products Pvt Ltd (formerly known as M/s Aura Electrochem Batteries Pvt Ltd) Survey No 143, Hissa No 1172, Vadagaon- Dhayari, Pune Sinhagad Road, Pune 411041 under Section 11AB of the CEA, 1944. 4. I impose a penalty of Rs. 36,89,995 (Rupees Thirty Six Lakhs Eighty Nine Thousand Nine Hundred and Ninety Five only) from M/s Aura Solar Products Pvt Ltd (formerly known as M/s Aura Electrochem Batteries Pvt Ltd) Survey No 143, Hissa No 1172, Vadagaon- Dhayari, Pune Sinhagad Road, Pune 411041 u....
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.... M/s RMP were recorded under Section 14 of the Central Excise Act, 1944. Samples of the lamp/ lantern were drawn and technical opinion on the same was also taken from Prof Shri J K Nayak (in charge [energy Systems Engineering]) IIT Mumbai. 2.3 On the basis of investigations undertaken, it was alleged that "(a) The portable lantern by itself does not have any features to be called as a solar lantern. It was classifiable as "portable electric lamp designed to function with its own source of energy" under heading No 8513.00 (85130000) of CETA, 1985 and was liable to assessment under Section 4A of CEA, 1944. (b) The said lamp, when sold in combination with a PV Module, becomes "Photovoltaic Lighting system" or "Solar Lantern" as per the definition. The said system was classifiable under heading 8513.00 of CETA, 1985 and was referred to as "Solar Lantern" in the notification No 6/2002 and alike. (c) Removal of two lamps with one solar panel did not appeared eligible to be called as a "Solar Lantern" within the meaning of its definition and accordingly, as envisaged in the relevant Central Excise Notification, that wherever as envisaged in the relevant Centr....
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.... The show cause notice was adjudicated by the Additional Commissioner as per the order referred in para 1, supra. 2.8 Aggrieved appellants preferred an appeal before Commissioner (Appeal), which was dismissed by him as per the impugned order. 2.9 Aggrieved appellants are in appeal before CESTAT. 3.1 We have heard Shri Prasad Paranjape, Advocate for the appellants and Shri Sanjay Hasija, Superintendent, Authorized Representative for the revenue. 3.2 Arguing for the appellants learned advocate submitted that- • It is settled principle of law that goods are to be assessed in the manner in which they are cleared from the factory. In the case in hand appellant clears solar lantern comprising of Solar PV Module with two charging points attached to it capable of charging two lamps simultaneously, along with 2 lamps with rechargeable battery; • At no point of time they have cleared a lamp individually i.e. without corresponding solar PV Module; • Exemption Notification needs to be interpreted as it is without adding or subtracting any words in the same. Notification exempts the goods namely "Solar Lantern" which have been cleared by them. ....
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....6 to 49 of the order in original while determining the facts has recorded as follows: "46. Further the CBEC has given a basic technical ground for the solar lantern (solar system) that a solar lantern should have three main components i.e. 1) Solar PV Panels 2) Storage Battery & 3) Lamp; that a portable lantern is a portable electric lamp designed to function by its own source of energy i.e. dry batteries, accumulators etc. and depending on the source that powers the battery of the device, the lamp can become a solar lantern. In case the battery is powered through a solar device only then it can be termed as solar lantern or else the same is only an electric lantern; SPV Module which is a device comprising of photovoltaic cell that convert the solar energy to electric energy is the device powering the battery of lantern. Since the battery is basically powered by solar energy the whole system qualifies as a solar lantern; it is quite evident that solar lanterns cannot be there without a corresponding SPV module. Strictly there has to be one to one correlation between the Solar Lanterns cleared and the SPV's cleared. However in the exemption Notification No 6/2002-CE as ....
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.... solar power or conventional power, and that the solar panel has a role only to provide electric current for charging. He has further stated that if the battery is fully discharged and not being capable charged solely on solar power, as a remedy, they suggest replacement or recharge from conventional power. Hence I find that M/s Aura has deliberately misclassified the second lamp in every set to take the benefit of the exemption and the second lamp of the set should be classified as an ordinary lamp and duty be levied on it accordingly. 49. Further the spirit of the exemption notification concerned is to promote the use of non conventional energy based systems. It does not allow the assessees to take benefit to avoid/ evade the Central Excise duty. The clearance of 2 nd or 3 rd lamp connected to one solar photovoltaic panel would lead to the grant of an unintended benefit of the notification contrary to the purpose of the notification. Therefore the second lamp is not eligible for exemption as it defeats the very purpose of notification. The said lamp is actually a simple portable electric lamp. The extra lamp does not have any feature to qualify as a solar system or solar....
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.... lamp or solar lantern, Prof Nayak clarified that without PV Module the sample cannot be called as a solar lamp or solar lantern. • With reference to the question whether the battery contained in the lantern can be recharged by exclusively using solar power i.e. by solar charger, which consists of solar panel or photovoltaic plate and connecting cable. Prof Nayak clarified that the battery contained in the lantern can be re charged by using solar power, that if solar power is available, then no other power supply is necessary, that if solar power is not available, the battery can be recharged from the regular supply using a suitable adapter. • With reference to question whether the battery contained in the lamp can be re charged by regular power supply and if so, whether any modification(s) in the lamp are required, Prof Nayak clarified that a battery can be charged with regular supply but a battery charger of suitable specifications will be required so that the charging does not affect the life of the battery. No modification in the lamp is however necessary. • With reference to the question whether the lamp/ lantern in the form in which it i....