TaxTMI 
TaxTMI 
2022 (11) TMI 945
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....appellant demanding the Central Excise Duty amounting to Rs.1,11,61,424/- not being paid by them due to incorrect availment of the exemption Notification of 27.02.2010. The demand of interest and imposition of penalty was also proposed vide the said Show Cause Notice. The proposal was confirmed vide Order-in-Original bearing No.12/2018 - 19 dated 07.02.2019. The order has been upheld by Commissioner (Appeals) vide Order in Appeal No.278/2019 dated 14.10.2019. Being aggrieved, the appellant is before this Tribunal. 2. We have heard Mr. Mehul Jiwani, Chartered Accountant for the appellant and Mr. Sanjay Kumar Singh, Authorized Representative for the Respondent. 3. Learned Counsel for the appellant submitted that the supplies of module mounting structure was made against the purchase orders by the buyers who categorically mentioned that the goods are exempted goods by MNRE Certificates. The purchase order clearly reflects that the purchases are for solar power projects. The MNRE Certificate also certifies the said purpose. Not only this, the appellant had given a prior intimation to the Assistant Commissioner, about the clearances of the impugned goods without payment of duty. T....
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....f 1986), subject to the following conditions, namely :- (1) before the clearance of the goods from the factory, the manufacturer produces to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, a certificate, from an officer not below the rank of a Deputy Secretary to the Government of India in the Ministry of New and Renewable Energy recommending the grant of this exemption and the said officer certifies that the goods are required for initial setting up of a solar power generation project or facility; and (2) the manufacturer of such goods furnishes an undertaking to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction, to the effect that- (a) the said goods shall be used only in the said project or facility and not for any other use; and (b) in the event of failure to observe conditions above, the manufacturer shall pay the duty which would have been leviable at the time of clearance of goods, but for this exemption.". Notification No.26/2012-CE dated 8.5.2012: Exemption to machinery items, e....
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....these structures, the solar panels would be laid on the ground that is at Zero Degree angle which will give the least output as the sunrays shall be perpendicular to the solar panel only at one point of time during the entire day i.e. at 12 P.M. Since viability of power plant depends upon the power output and the output directly depends on the angle at which the structure holds the panel, hence, these structures are the integral component of the solar power generation plant. 7. Ministry of New and Renewable Energy in a letter No.24/40/2012 -13 dated 27.02.2013 as was sent to the Department of Revenue, with reference to the correspondence, has clarified that module mounting structures form such essential part of solar power plant that they were the 'components' of the plant and hence were covered in the Notifications issued in this regard. The word component is no where been defined in the excise law. The dictionary meaning thereof has to be looked into. Cambridge dictionary define component as a part that combines with other parts to form something bigger, a bigger system, process or machine. Merriam Webster Dictionary defines component as something integral part or element ....
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....tion No.26/2012 dated 08.05.2012. 10. We further observe that the said Notification is a conditional notification. One of the important condition is that an officer not below the rank of Secretary to the Government of India in the Ministry of New and Renewable Energy recommends the grant of this exemption indicating the quantity, description and specification thereof and certifies that the goods are required for initial setting up of a solar power generation project or the facility. The said Certificate (MNRE Certificate) was provided by the appellant to the Department even prior making the impugned clearances. We observe that Department has not disputed the competence of the authority issuing the said certificate. Accordingly, it is clear that the condition of the notification for availing exemption from duty also stands complied with by the appellants. 11. Appellant has brought to the notice that similar allegations were earlier leveled against the appellant vide Show Cause Notice for the prior period denying the exemption of the impugned Notification for the same goods earlier cleared by the appellant during the period December, 2015 to September, 2015. The said Show Cause....
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....r, in the impugned order under challenge, however he has still taken a contrary view relying upon two decisions i.e. M/s. Saraswati Sugar Mills (supra) and decision in the case of M/s. Bharti Airtel Ltd. vs. Commissioner of Central Excise, Pune reported in 2014(35) STR 865 but we are of the opinion that both these decisions are not at all applicable to the facts of the present case. In Saraswati Sugar Mills the goods in question were iron and steel structures which were not an essential requirement for the sugar manufacturing unit and in Bharti Airtel (supra) the goods were the towers fastened to the earth on which the antennas were to be installed, hence were not considered to be an accessory or the integral part of the antenna. 14. Present is altogether a different case of renewable energy production and of the components to be used by such production unit which are too integral part to the output of energy production unit (solar power plant). It being an environment friendly production unit the Government has announced the exemption under the impugned Notifications. The Officer of MNRE has been held to be a competent authority in the field of new and renewable energy. The cer....
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....e order dated 20.10.2014 in the case of M/s. Pennar Industries in para 25.2 thereof has also observed that: "Since as per the condition of Notification, duty shall be payable by the project developer and not by the manufacturer that the demand of duty on the manufacturer is liable to be dropped." 17. In view of these discussions, we hold that Commissioner (Appeals) has wrongly confirmed the duty demand upon appellant as manufacturer, for such goods which are exempted from duty. 18. Coming to the point of imposition of the penalty, we observe that penalty has been confirmed under Section11 AC of Central Excise Act, 1944. Penalty under the said section can be levied if and only if there is an intent to evade the payment of duty. In the present case, it is apparent that appellant had intimated the Assistant Commissioner regarding the clearance of impugned excisable goods without payment of duty of the goods being the components required for solar power project eligible for exemption under Notification. The intimation was sent vide letter dated 31.12.2015 i.e. even prior the clearance of the goods. The question of evasion of duty does not at all arises that too with the ....