TaxTMI 
TaxTMI 
2026 (9) TMI 1609
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....No. 12/2012-Cus dated 17.03.2012. 2. The Department alleged that the respondent violated Condition Nos. 35 and 45 of the exemption notifications, particularly the stipulation that the importer shall use the goods for the specified purpose. According to Revenue, transfer of imported WOEG parts to customers prior to erection and commissioning disentitled the respondent from availing exemption. Accordingly, Show Cause Notice dated 31.12.2015 was issued proposing recovery of differential duty of Rs.2,71,44,813/- along with interest, confiscation and penalty. The adjudicating authority, however, dropped the proceedings holding that the imported goods were admittedly used for manufacture and installation of WOEG and that the notifications did not prohibit transfer of goods prior to erection or assembly. 3. Aggrieved by the said order, Revenue has filed the present appeal. 4. The Ld. Authorized Representative Shri Anoop Singh appearing for the Department reiterated the grounds of appeal and submitted that the exemption notifications consciously employ the expression "he shall use them for specified purpose", thereby requiring the importer himself to remain the actual user of the ....
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....ng for determination in the present appeal, having regard to the facts and circumstances of the case, the rival submissions, the relevant provisions of the Customs Notifications and judicial precedents cited by both the sides. 8. The respondent imported parts of Wind Operated Electricity Generators and availed concessional duty benefit under Notification No. 21/2002-Cus dated 01.03.2002 and Notification No. 12/2012-Cus dated 17.03.2012. The exemption was subject, inter alia, to production of the prescribed Ministry's certificate and an undertaking by the importer that the imported goods would be used for the specified purpose, failing which the importer would be liable to pay the differential duty foregone. 9. We first proceed to examine the true scope of the exemption notifications. The entire case of Revenue proceeds upon an interpretation that the words "he shall use" necessarily imply that the importer must himself remain owner of the imported goods throughout and cannot transfer title under any circumstances. We are unable to accept such an interpretation. The notifications in question are incentive notifications intended to promote renewable energy generation by grantin....
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....materials produced by both the petitioner and respondent, it is seen that in the impugned order, the respondent admits that the petitioner is engaged in the business of manufacture and installation of Wind Operated Electricity Generators, for which, they have imported Rotor Blades - Parts of Wind Operated Electricity Generators and filed three bills of entry through their Customs Broker, by availing Basic Customs Duty [BCD] concession under Sl.No.362(3) of the Customs Notification No.12/2012-Cus., dated 17.03.2012 (read with Condition No.45) and exemption from additional duty of customs under Sl.No. 14-C of the Customs Notification No.21/2012-Cus, dated 17.03.2012, as amended (read with condition No.46 of the Customs Notification No.12/2012- Cus, dated 17.03.2012). The petitioner have obtained certificates from the Ministry of New and Renewable Energy on the ground that the Rotor Blades will be used for the manufacture of WOEGs. Further, they have also executed undertaking bonds to the Assistant Commissioner with an undertaking that the said goods, namely, Rotor Blades of Wind Operated Generator falling under CTI 85030090 are imported for the manufacture of wind operated power gene....
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.... expertise. The petitioner having expertise applied with the Ministry of New and Renewable Energy, got approval, and then imported Rotor Blades and thereafter, transported the same, erected and commissioned the same at the customer's site. It is a known fact that the Windmill has to be necessarily erected only in the site. It cannot be assembled in a factory and thereafter, moved to the site, which is impracticable. The imported Rotor Blades, thus, need no customization and mechanization. Hence, by raising an invoice in the name of his client namely, Sun Photo Voltaic Energy Private Limited after import and thereafter, transporting the same to the customer's site is only an notional exercise, by that alone, it cannot be said that the petitioner is not the importer and he is the person, who has used the same for a specific purpose, for which, it was imported. The payment to the petitioner is not on invoice to invoice basis, it is a turnkey project, wherein, the payments made at stages, which is no way correlated to the invoices raised. This Court as well as the Hon'ble Apex Court held that the purport of investigation not to be diluted by imparting meanings to frustrate ....
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....udicial pronouncements referred to above. 15. We further note that the Department has not placed any distinguishing factual feature which would justify departure from the ratio laid down in Nordex India Pvt Ltd or GE India Industrial Pvt. Ltd. The respondent had furnished the requisite certificates issued by the Ministry of New and Renewable Energy, executed undertakings at the time of import and ultimately used the imported goods exclusively for erection and commissioning of windmills. The essential object of the notification therefore stands fully satisfied. 16. We therefore hold that the expression "he shall use them for specified purpose" cannot be interpreted in the rigid and literal manner suggested by Revenue so as to require continuous ownership of imported goods till final commissioning. The condition stands satisfied so long as the imported goods are ultimately used by the importer in execution of the specified windmill project in terms of the turnkey contractual arrangement. Consequently, transfer of goods under supply contracts prior to final assembly does not amount to breach of notification conditions. 17. In view of the settled legal position emerging from t....