2014 (3) TMI 448 - AT - Central Excise

Waiver of pre deposit - Benefit of exemption Notification No.6/2006-CE dated 01.03.2006 - Whether the applicant is eligible for the benefit of exemption Notification No.6/2006-CE dated 01.03.2006 (Sl. No.91) for supply against International competition bidding (ICB) to the Chandrapur Project and Bhusawal Project of Maharashtra State Power Generation Co. Ltd (MAHAGENCO) during the period January 2010 to February 2011 - Held that - subsequent amendment of Customs Notification by Notification No. 49/2012-Cus dated 10.09.2012, Bhusawal and Chandrapur expansion projects were incorporated in the same notification. In view of the above, the applicants have made out a prima facie case for waiver of predeposit of duty and penalty. We have also noticed that the order of the Commissioner as mentioned above and this Tribunal in the appellant s own case in respect of Chandrapur Thermal unit has already granted stay - Stay granted.

Issues:
1. Eligibility for exemption under Notification No.6/2006-CE for supply against International competition bidding (ICB) to specific power projects.
2. Interpretation of whether the power projects in question are expansion projects or independent projects.
3. Impact of subsequent amendments to Customs Notification on the eligibility for exemption.
4. Consideration of the findings of the Commissioner and previous Tribunal orders.

Analysis:
1. The primary issue in this case was the eligibility of the applicant, a Public Sector undertaking, for the benefit of exemption under Notification No.6/2006-CE for supplying goods against International competition bidding (ICB) to specific power projects. The Commissioner had confirmed a duty amount along with interest and penalty for alleged violation of the conditions of the said Notification.

2. The Tribunal examined the conditions of the relevant notifications, particularly Serial No. 91 of Notification No. 6/2006-CE, which provided for nil rate of duty for goods supplied to ICB subject to fulfilling specific conditions. The dispute revolved around whether the power projects in question were expansion projects or independent projects, as this classification determined the applicability of the exemption.

3. The legal representative of the applicant argued that subsequent amendments to the Customs Notification, specifically Notification No. 49/2012-Cus dated 10.09.2012, had incorporated the Bhusawal and Chandrapur expansion projects, thereby supporting the applicant's claim for exemption. The Tribunal considered this argument in conjunction with the findings of the Commissioner and previous Tribunal orders related to similar matters.

4. After a detailed analysis of the notifications, including the amendments and the specific projects mentioned in List 32A, the Tribunal found that the Chandrapur and Bhusawal Projects had been certified as Mega Power Projects before the specified date, making them eligible for the exemption under the relevant Notifications. The Tribunal noted that the exemption from Central Excise Duty was available to the goods supplied against ICB to these projects, as per the applicable Notifications.

5. Based on the above considerations, the Tribunal granted a waiver of predeposit of duty and penalty, staying the collection of dues until the appeal's final disposal. The decision was influenced by the clarification provided by the subsequent Customs Notification and the previous orders related to similar cases, indicating the applicant's prima facie case for exemption.

6. In conclusion, the Tribunal's decision favored the applicant, acknowledging the eligibility for exemption under the relevant Notifications based on the classification of the power projects and the subsequent amendments to the Customs Notification. The waiver of predeposit and the stay on the collection of dues reflected the Tribunal's assessment of the applicant's case and the legal provisions at hand.

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