TaxTMI 
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2025 (6) TMI 1678
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....inciple'. b) that the learned Commissioner (Appeals) has not appreciated the fact that the Principal Notification No. 21/2002 was amended vide Notification No. 65/2011-Cus dt.21.07.2011 to provide benefit to such Mega Power Projects for which the status is 'provisional', which was not available earlier and since the term 'In-principle' and 'provisional' have specific legal connotation, therefore, Mega Power Projects approved 'In-principle' or 'provisional' cannot be equated with a project that is unconditionally granted the status of Mega Power Project. c) that the Commissioner (Appeals) has not appreciated the condition of the Notification No. 21/2002 where there is requirement for certification by an Officer not below the rank of a Joint Secretary. d) that in view of settled law in the case of CC, Bangalore Vs Maestro Motors Ltd [2004 (174) ELT 289 (SC)] and in the case of CCE, New Delhi Vs Hari Chand Shri Gopal [2010 (260) ELT 3 (SC)], a person must comply with all the conditions of the notification and the mandatory requirements of the conditions must be obeyed or fulfilled exactly. e) that the Provisional Mega Power Project status certification in 2011 was for 3 x 350 ....
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....ditions of notification, therefore, in respect of BEs from S.No.1 to 4 of the above table, which have been filed prior to confirmation of Provisional Mega Power Project status, they are not eligible under S.No.400 of Notification No.21/2002. 4. The Commissioner (Appeals), after hearing the submissions made by the party, inter alia, noted that in this case, the In-principle Mega Power Project status was granted on 16.03.2009, Provisional Mega Power Project status was granted on 19.08.2011 and Final Mega Power Project status was granted on 01.02.2012 and all the BEs were filed provisionally between 30.05.2011 and 31.08.2011 were finalized on 21.01.2014. He also took into account the plant verification report submitted by jurisdictional Central Excise Authority confirming that goods were installed for the said project, which fulfilled the requirement of Mega Power Project status certificate as on the date of finalization of the BEs and therefore, at the time of finalization of BEs, which were under provisional assessment, the same is required to be finalized as the project import rate applicable to the goods, which fulfilled the requirement of status of Mega Power Project. He has als....
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....deferred. In a statute where there is a provision for a provisional assessment and/ or provisional clearance, subject to compliance of certain conditions, such conditions may be fulfilled at a later stage, namely, at the stage of final clearance or final assessment." 6. Based on the appreciation of the facts and judgments cited supra, he held that respondents were eligible to get Mega Power Project status and to get eligible for an exemption, procedural requirement of indicating the said status/exemption through a document may be dispensed with. Mere procedure of obtaining a certificate cannot vitiate the status of the respondent in any manner and that in this case, it was evident that Ministry of Power had already granted 'In-principle Mega Power Project status' way back in 16.03.2009 to the appellant much before the execution of the impugned imports. 7. Learned AR reiterates the grounds taken by the department in their appeal and further submits that exemption notification must be construed strictly as held in the case of CC (Import), Mumbai Vs Dilip Kumar & Company [2018 (361) ELT 577 (SC)]. He has also relied on the judgment of Coordinate Bench in the case of Airport Authorit....
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....e power purchasing State undertakes, in principle, to privatize distribution in all cities, in that State, each of which has a population of more than one million, within a period to be fixed by the Ministry of Power; and (iii) the power purchasing State has agreed to provide recourse to that State's share of Central Plan allocations and other devolutions towards discharge of any outstanding payment in respect of purchase of power. There is no dispute with regard to certificate dt.01.02.2012, whereby, the Joint Secretary to the Government of India in the Ministry of Power has certified that Kamalanga Power Project being set up at Dhenkanal District, Orissa of the respondent is a thermal power plant of capacity of 3 x 350 MW and that the power purchasing States have constituted the Regulatory Commissions with full powers to fix tariff and the power purchasing States shall undertake to carry out distribution reforms as laid down by Ministry of Power. 11. The department is not contesting that post 19.08.2011 or for that matter post 01.02.2012 there is any issue with considering 3 x 350 MW as Mega Power Project. We find that the respondent had received 'In-principle' Mega Power Projec....
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....d goods, except for PPA with Bihar State Electricity Board on 09.11.2011. Therefore, despite having these compliances already in place, much before the date of import, if there was delay in issuing the so called 'Final Mega Power Project status certificate' by Joint Secretary, Ministry of Power, it does not take away the fact that this certificate was in continuation of their earlier In-principle status as well as Provisional status granted for setting up power project of 1050 MW (3x350 MW). While the fact remains that in the amendment notification, certain procedural relaxation has been extended even for the provisional status and even when some of the conditions were not fulfilled, the same is being denied for period in which In-principle status was accorded by the Ministry of Power. We find that once all the relevant conditions were satisfied, all earlier certification, irrespective of whether given 'In-principle' or 'Provisional' stands subsumed and finalized in the Mega Power Project status certificate issued by Ministry of Power, which incidentally has not been referred as final certificate and the status of project has to be considered as 'Mega Power Project'. 13. Therefore....
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....n view of change in classification, availability of conditional/unconditional notification, finalization of contract value, etc. As discussed in foregoing paras, the respondent had registered their project import again on receipt of provisional status and department has no objection to extend the benefit on the strength of some post-amended registration under project import. However, on the date of finalization, while the value is not in dispute in relation to 3x350 MW project, the benefit of notification is being denied as it was not in force on the date of import. We find that the rate of duty has to be read with notification, if any, at the time of finalization of provisional assessment and since there is no change in duty at the time of provisional assessment and only benefit of notification has been extended in the given factual matrix, the provisions of section 15 would not be relevant. 15. Further, we do not find force in the counter by the respondents that the grounds of appeal has gone much beyond the grounds of appeal approved by the competent authority, who has the power to review the order of Commissioner (Appeals) and therefore, we are not taking up some of the ground....