TaxTMI 
TaxTMI 
2024 (7) TMI 1796
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....The interest amount of Rs. 2,88,17,955/- in respect of the ten Bills of Entry deposited on 12.12.2023 was directed to be adjusted. 2. ACME Aklera Power Technology Private Limited [ACME], which is a respondent is this appeal, is engaged in the development and setting up of solar power projects across the country. It entered into a Power Purchase Agreement dated 10.06.2019 with Solar Energy Corporation of India Ltd [SECT]. The Central Government introduced Manufacturing and Other Operations in Warehouse Regulations, 2019 [the 2019 Regulations] allowing deferral from payment of customs duty on import of capital goods, machinery and inputs for carrying out operations (manufacturing process or other operations) in a private bonded warehouse. 3. To further clarify the 2019 Regulations, a Circular dated 01.10.2019 was issued by CBIC. It lays down the procedures and documentations required for units in a comprehensive manner, including the format of the application seeking permission, provision of execution of the bond by the licensee, receipt, storage and removal of goods, maintenance of accounts and conduct of audit. 4. In order to set up its solar power project within the Wareh....
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.... payable at the time of the said clearance; (ii) Upon detailed examination of figures of receipt, handling, storing and removal of the warehoused goods in respect of solar modules imported during September, 2022 to October, 2023, paragraph 12 of Circular dated 01.10.2019 is not applicable as the concerned solar modules could not be installed due to subsequent changes in design, layout of the project and, therefore, the same were removed from the warehouse by filing the ex-bond Bill of Entries as per section 61(1)(a) of the Customs Act on payment of applicable duties; (iii) ACME had imported capital goods under section 65 of the Customs Act with intention use it is its project. However, 48742 (approx. 5.82% of total imported quantity) could not be used for intended purpose; (iv) Warehoused imported goods which were intended for use in the project of ACME can also be cleared for home consumption in terms of section 61(1)(a) of the Customs Act; and (v) The provisions of section 61(1)(a) of the Customs Act and paragraph 12 of the Circular dated 01.10.2019 have been erroneously applied. 10. Pursuant to the aforesaid order of the Commissioner (Appea....
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.... (ii) The term "intended for use" is in contradistinction with the term "actual use". In this regard, reliance has been placed on the decision of the Supreme Court in State of Haryana vs. Dalmia Dadri Cement Ltd. [2004 (178) E.L.T. 13 (S.C.)], where the Supreme Court distinguished the terms "intended for use" and "goods used" or "goods actually used"; (iii) Where the term used in the statute is "intended for use" and not "actual use", the same must be interpreted in a manner to eschew its meaning; (iv) In the present case, on the date when such modules were deposited as well during the entire period of such deposit, the modules were "intended for use" in the warehouse; (v) It is clear that all solar modules which were deposited in the warehouses were wholly "intended for use" in the warehouses and but for the change in plant design and layout, the remaining 5% module have also been used in the warehouse itself; (vi) The burden of proof lies on the department to prove that ACME did not intend to install the goods in the warehouses; and (vii) Paragraph 12 of Circular dated 01.10.2019 is applicable in cases where goods which are no....
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....mind as a purpose or goal. 19. The term "intended for use" is in contradistinction to the term "actual use". This aspect has been highlighted by the Supreme Court in Dalmia Dadri Cement. The Supreme Court observed that the clause mentioned "for use" would mean "intended for use", and this is different from "goods actually used" or "goods used". The relevant portion of the decision is as follows: "10. We are unable to accept the submission of Mr. Bana that, in order to get the exemption it must be shown that the goods in question, namely, the cement supplied by the assessee in this case was actually used in the generation or distribution of electrical energy. It must be noted that the important words used in the relevant provisions are goods for use by it in the generation or distribution of such energy (emphasis supplied by us). On a plain reading of the relevant clause it is clear that the expression "for use" must mean "intended for use". If the intention of the legislature was to limit the exemption only to such goods sold as were actually used by the undertaking in the generation and distribution of electrical energy, the phraseology used in the exemption clause wou....
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....er (Appeals) is as follows: "7.2 The appellant imported 50121 solar modules vide 10 BEs mentioned in para 2.1 above and warehoused the same in the MOOWR licensed warehouse in February, 2023 & March, 2023. The appellant installed only 1379 solar modules out of 7728 imported vide Warehouse Bill of Entry No. 4770998 dated 23/02/2023. Further, I find that remaining 48742 Nos. Solar PV Modules imported by the appellant vide 10 BEs mentioned in para 2.1 above were not used or installed by them and they filed Ex-bond B/E on 01/12/2023 & 02/12/2023 for domestic clearance of same on payment of applicable duties. xxxxxxxx 9. I would like to examine provisions of section 61(2) of the Customs Act, 1962 and provisions of para 12 of the CBIC Circular No. 34/2019-Customs dated 01.10.2019 as under xxxxxxxxx I find that the impugned case is covered under clause 1(a) of section 61 of the Customs Act, 1962 in which the capital goods may remain in the warehouse till their clearance from the warehouse, hence in this situation at the time of clearance of Capital Goods in DTA (Domestic Tariff Area), interest is not payable & only applicable duties are required....