TaxTMI 
TaxTMI 
2024 (6) TMI 300
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....2012 (iii) Notification no. 33/2005-CE dated 08.09.2005 (iv) notification no. 15/2010-CE dated 27.02.2010 (v) Notification no. 26/2012-C.E. dated 08-05-2012 but they had not given/ furnished any undertaking/ certificate/ intimation to the competent authority in terms of the said notifications and therefore, cleared the goods without payment of C. Ex. duty by wrongly availing the exemption of the aforesaid notification. 2. During reply to the impugned show cause notice, the appellant stated that they had availed the benefit under Sr. No. 91 & 91A of the Notification no. 06/2006- dated 01.03.2006 as amended and not under Sr. No. 91A & 91B of the notification. Further, it was stated that they had availed benefit of Sr. No. 336 of the Notification No. 12/2012-C.E., dated 17-3-2012 and not Sr. No. 337 of the notification. Further, they claimed that the benefit under all the impugned notifications no. 6/2006 as amended, notification 12/2012, notification no. 33/2205, notification no. 15/2010, and notification no. 26/2012 was correctly availed by them. 2.2 The Principal Commissioner vide the impugned order dated 23.03.2016 confirmed demand of Rs. 4,38,73,549/- in respect of Sr. No. ....
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....fications thereof; and (c) the Chief executive officer of the project 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 - i. the said goods will be used only in the said project and not for any other use; and ii. in the event of noncompliance of sub-clause (i) above, the project developer will pay the duty which would have been leviable at the time of clearance of goods, but for this exemption." 12/2012 336 Any Chapter All goods supplied against International Competitive Bidding If the goods are exempted from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under section 3 of the said Customs Tariff Act when imported into India. 33/2005 amended by Nof. 38/2005 - Any Chapter all items of machinery, including prime movers, instruments, apparatus and appliances, control gear and transmission equipment and auxiliary equipment (including those required for testing and qu....
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.... (ii) the manufacturer proves to the satisfaction of the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, that there is a valid power purchase agreement between the importer and the purchaser, for the sale and purchase of electricity generated using non-conventional materials, for a period of not less than ten years from the date of commissioning of the project. 15/2010 - - all items of machinery, including prime movers, instruments, apparatus and appliances, control gear and transmission equipment and auxiliary equipment (including those required for testing and quality control) and components, required for initial setting up of a solar power generation project or facility 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 tha....
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....ced documentary evidence with respect to their eligibility under condition no. 29, 31 & 86 of the Sr. No. 214, 216 & 400 of the notification no. 21/2002 Cus dated 01.03.2002 on the like goods as prescribed under the Sr. No. 91,91A of notification no. 6/2006 CE and Notf. 6/2006-CE amended vide Notf. 46/2008-CE respectively and 336 of notification no. 12/2012-CE which is clearly beyond the scope of show cause notice. He relied upon case law in BALLARPUR INDUSTRIES LTD. 2007 (215) E.L.T. 489 (S.C.), RELIANCE PORTS AND TERMINALS LTD. 2016 (334) E.L.T. 630 (Guj.) and CCE v. Brindavan Beverages (P) Limited 2007 (213) E.L.T. 487 (S.C.) that order beyond the scope of show cause notice is not sustainable. H further argued that the commissioner also observed and accepted that when like goods are imported into India than same are exempted under sr.no.214, 216 & 400 of the Notification No. 21/2002-Cus dated 01/03/2002. With respect to non-observance of condition no. 29, 31 & 86 of the customs notification, he argued that the same pertains to import of goods only and is cannot be applied to them as they are not the importer. 2.6 He relied upon the case law of KENT INTROL PVT. LTD 2014 (301) ....
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.... said Notification. (iii) The genuineness of the quantum of the claim of the noticee listed above as shown in the Annexure attached to the letter dated 25.01.2016 and satisfaction of the conditions related thereto on the basis of the documents provided and concerned invoices, it is to submit that on the basis of the documents and invoices provided by the assessee it is found that they have failed to submit the intimation prior to dispatch of the material but all the invoices as per the Annexure have been verified by this office and found in accordance with the respective Project Certificate." 2.8 On the basis of above report Ld. Counsel for appellant has contended that though admittedly the appellant did not submit the requisite under taking from the Chief executive officer of the project, nevertheless there was a substantial performance of the conditions of notification 6/2006-CE in as much as they were in possession of the certificate from Chief Engineer in the Central Electricity Authority , a copy of which was been marked to the jurisdictional Deputy/Assistant Commissioner and all the invoices as reported by the Jurisdictional Assistant Commissioner were in accordan....
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....y complied with the provisions of the relevant notification and mere non-submission of undertaking was only a procedural infringement and substantial benefit cannot be decided merely for a bonafide procedural lapse whereas the provisions of the notification were otherwise fully complied substantially by the appellant. 6. In view of above findings we hold that no demand is sustainable against the appellant under Sr. No. 91 of Notification 6/2006-CE and Sr. No. 91A of Notf. 6/2006-CE as amended by Notf. 46/2008 as well as notification 12/2012-CE. Accordingly, we drop the demand on this issue. Notification 33/2005-CE as amended vide Notf. 38/2005 and Notification No. 15/2010-CE as amended vide Notification No. 26/2012-CE 7. In this case the demanded has been confirmed by the Ld. Pr. Commissioner on the ground that the appellant has failed to produce the requisite certificate to the Deputy Commissioner of Central Excise issued by the Deputy Secretary to the Government of India in the Ministry of Non-Conventional Energy Sources/ Ministry of New and Renewable Energy as well as an undertaking that the goods will be used only in the said project and not for any other use. Ld. Coun....