TaxTMI 
TaxTMI 
2024 (10) TMI 46
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....Act, 1985. During the scrutiny of their records, it was noticed that they were importing items like Photovoltaic Glass, Solar Cells, Aluminium Profiles, Solder Flux and Packing materials without payment of duty under Notification No.52/2003-Cus. dated 31.03.2003 as amended and also procuring the said parts locally under Notification No.22/2003-CE dated 31.03.2003. The appellant had cleared the goods for export and also sold the same in Domestic Tariff Area (DTA) without payment of duty under Notification No.6/2006-CE dated 01.03.2006 as amended. Consequently, show-cause notices were issued to the appellant from time to time for recovery of the duty foregone and on adjudication, the same had been confirmed. Aggrieved by the said order, they approached this Tribunal and this Tribunal vide Final Order No21301/2014 dated 07.08.2014 held that the appellants are not eligible to the benefit of the Notification No.52/2003-Cus. dated 31.03.2003 and Notification No.22/2003-CE dated 31.03.2003 since the finished goods were exempted from payment of duty. However, the Tribunal had remanded the matter to the adjudicating authority for de novo adjudication to examine the claim of the appellant th....
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....ust be construed having regard to the purpose and objective it seeks to achieve. An exemption Notification should be read literally and the assessee claiming benefit of any exemption Notification must show that they satisfy the eligibility criteria. Once it is found that the exemption Notification is applicable, the same should be construed liberally. He has submitted that in their case, it is impossible to satisfy the condition of having manufactured the parts within the factory and to use the same in the manufacture of final products. It is therefore submitted that the importer should be treated in par with the manufacturer. It is a well settled principle of law that where literal meaning leads to an anomaly and absurdity, the same should be avoided. When the goods are imported evidently, the same could not be manufactured in the factory, therefore, it is impossible to apply the Notification in case of imported case. In support, he has referred to the judgment in the case of Commissioner of Customs vs. Malva Industries Limited: 2009 (239) ELT 0214 (SC); AIDEK Tourism Services Pvt. Ltd. : 2015-TIOL-74-SC-CUS; and SRF Limited vs. Commissioner of Customs: 2015-TIOL-74-SC-CUS. Referr....
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....aimed the exemption in respect of the said goods in the alternate Notifications. The appellant did not claim exemption from BCD on Solar Photovoltaic Glass up to 30.04.2011 as there was no demand of BCD up to 30.04.2011. For the period from 01.05.2011 to 30.03.2012, they claimed exemption from BCD under Notification No.25/1999-Cus. dated 28.02.1999. The total demand of BCD in respect of Solar Photovoltaic Glass raised in show-cause notice dated 09.05.2012 and 09.11.2012 for the period 01.05.2011 to 30.10.2011 and 01.11.2011 to 31.03.2012 is Rs.4,12,325/-. The appellant submits that 'Edge Tape' is not exempted from any of the Notification, therefore, they are not disputing the demand of BCD in respect of Edge Tape. However, they have challenged the demand on the ground of limitation; as out of total demand of Rs.1,63,685/-, an amount of Rs.1,62,873/- is barred by limitation. 3.3 Further, he has submitted that the demand confirmed for the period April 2009 to April 2011 invoking extended period is barred by limitation as the show-cause notice was issued to them on 02.04.2012. He has submitted that since the appellant had been allowed the benefit of exemption from BCD under alterna....
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....y the Tribunal in a number of cases wherein it has been held that assessee are not entitled to the benefit of Notification No.6/2006-CE dated 01.03.2006 and No.12/2012-CE dated 17.03.2012 on the parts. In support, he has referred to the following judgments: * M/s. Sova Solar Limited vs. Commissioner of C. Ex & S. Tax, Durgapur: 2020 (7) TMI 485 - CESTAT KOLKATA * M/s. Jupiter International Ltd. & Ors. Vs. CC, New Delhi: Final Order No.50569-50571/2023 dated 28.03.2023 * M/s. Raydean Pvt. Ltd. & Others vs. CC, New Delhi: 50361/2022 dated 22.04.2022 * M/s. Kinjal Precious Pvt. Ltd. & Ors. Vs. CC, New Delhi: 50179 - 50202/2023 dated 24.04.2023 4.1 Further, he has submitted that the learned Commissioner has rightly invoked extended period of limitation in the first show-cause notice dated 02.04.2012 as the appellant had evaded duty which was detected only during the course of audit. 5. Heard both sides and perused the records. 6. The issues to be decided in these appeals are whether (i) the exemption Notification No.06/2006-CE dated 01.03.2003 and Notification No.21/2012-Cus. dated 17.03.2012 are available on the inputs used in manufacture o....
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....and pipe type solar collector (4) Solar cooker (5) Solar water heater and system (6) Solar air heating system (7) Solar low pressure steam system (8) Solar stills and desalination system (9) Solar pump based on solar thermal and solar photovoltaic conversion (10) Solar power generating system (11) Solar photovoltaic module and panel for water pumping and other applications (12) Solar crop drier and system (13) Wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller (14) Water pumping wind mill, wind aero-generator and battery charger (15) Bio-gas plant and bio-gas engine (16) Agricultural, forestry, agro-industrial, industrial, municipal and urban waste conversion device producing energy (17) Equipment for utilising ocean waves energy (18) Solar lantern (19) Ocean thermal energy conversion system (20) Solar photovoltaic cell (21) Parts consumed within the factory of production of such parts for the manufacture of goods specified at S. Nos. 1 to 20 above. No.12/2012-CE dated 17.03.2012 (1) (2) (3) (4) (5) Sl. No. Chapter or heading or subheading or tariff item of the First Schedule Descr....
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...., what is claimed is an exemption available for "parts consumed within the factory of production of such parts for manufacture of goods specified at Sl.No.1-20 above" (Sl.No.21, List-5 read with Sl.No.84 of the table). Clearly, there is no dispute with regard to the parts manufactured by the appellant and consumed within their factory. What is in dispute is that the parts which they have procured either by importing or from other indigenous suppliers, those are not consumed within the factory of production. There is no exemption for such parts. Therefore, the appellant is also not entitled to the benefit of exemption notification 06/2006-CE." Also, the same view was expressed by the Tribunal in Jupiter International Ltd. & Ors. (supra). 10. This Tribunal in a similar set of facts and circumstances in Raydean Industries case (supra), the claim of the appellant that "Module Mounting Structures" whether could be considered as part of 'Solar Power Generating System'. Sl. No.332 of the Notification No.12/2012-Cus. dated 17.03.2012 allowed Non-conventional Energy Device specified in List 8. The appellant claimed the parts as 'Solar Power Generating System' where a specific mention ....
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....goods specified at Sl. No. 1 to 20 above. This is evident if a comparison is made with Sl. No.41 of List 5 of the same Notification, which reads as: "parts or components of the machineries specified at item numbers (1) to (40) above." Therefore, if the intention of the legislature to extend exemption to all parts consumed in the manufacture of list of goods mentioned at Sl. No. 1 to 20 of List 8, then the wording of the expression should have been similar to that of List 5 of the same Notification. Therefore, it is clear that the exemption was intended to be allowed to the parts consumed within the factory of production of such parts. As observed by the Commissioner the said Sl. No. 21 of List 8 was deleted from 11.7.2014. 12. Their Lordships in M/s. Dilip Kumar and Co. (supra) laying down the principle of interpretation observed as : "16. The purpose of interpretation is essentially to know the intention of the Legislature. Whether the Legislature intended to apply the law in a given case; whether the Legislature intended to exclude operation of law in a given case; whether Legislature intended to give discretion to enforcing authority or to adjudicating agency to appl....
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....ns arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention, i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed..." 19. The well-settled principle is that when the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, the Courts are bound to give effect to the said meaning irrespective of consequences. If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, it was held that if the words used are capable of one construc....
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....cations. 14. Since the appellants are not entitled to avail benefit of Notification No.6/2006-CE dated 01.03.2006 and Notification No.12/2012-CE dated 17.03.2012, that is additional duty of Customs under Section 3 of Central Excise Tariff Act, 1975 (CVD) being leviable, therefore, the additional duty leviable under subsection 5 of Section 3 of the Customs Tariff Act, 1975 (SAD) cannot be extended to the appellant. 15. On the issue of BCD on Solar Photovoltaic glass and Edge Tape, demand has been confirmed by the Commissioner. The appellants have not pressed confirmation of BCD and CVD in respect of Edge Tape; hence, the Commissioner has confirmed the demand. Also, in their submissions before this Tribunal they have not pressed the said point. The Commissioner has also recorded at para 25 in respect of Solar Photovoltaic glass that the appellant had not claimed exemption from BCD under any alternate Notification even though there was demand on the BCD on this item, hence, the payment of BCD in respect of Solar Photovoltaic Glass was also not considered in the order. In their written submission, the appellant had submitted that they did not claim exemption on Solar Photovoltaic....