2016 (11) TMI 983 - AT - Customs

Project import - denial of the benefit of Notification No. 6/2002-CE dt.1.3.2002 - import of steam turbine gearbox and spares - If while availing the concessional rate of duty under Notification No. 21/2002-Cus. dt.1.3.2002, the appellants could simultaneously availed the benefit of Notification No. 6/2002-CE dt. 1.3.2002 for the purpose of CVD? - Held that - reliance placed on the decision of the case of Triveni Engineering & Industries Ltd. 2004 (6) TMI 128 - CESTAT, BANGALORE where it was held that the exemption cannot be extended to turbine which converts heat energy into rotational energy (kinetic energy). Therefore, we are not convinced with the appellants plea that the turbine is eligible for nil rate of duty under Sl. No. 251 of Notification No. 6/2000, read with Sl. No. 16 of list of the said notification or under Notification 6/2002, dated 1-3-2002 read with Sl. No. 16 of List 9 - the benefit of Notification No. 6/2002-CE dt. 1.3.2002 cannot be extended to the appellants for the purpose of calculation of CVD. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Whether the appellants could avail the benefit of Notification No. 6/2002-CE simultaneously with Notification No. 21/2002-Cus for CVD.
2. Whether the benefit of Notification No. 6/2002-CE is available to the appellants.

Analysis:

Issue 1:
The appellant contended that simultaneous availment of Notification No. 6/2002-CE and Notification No. 21/2002-Cus is permissible, citing a CBEC Circular allowing similar benefits under different notifications. The Circular clarified that such simultaneous availment was possible under specific circumstances, as seen in the case of Notification No. 12/2012-Customs and Notification No. 46/2011-Cus. The appellant argued that both notifications prescribe different rates for Basic Customs Duty and Additional Duty of Customs, thus supporting their claim for simultaneous benefit under the mentioned notifications.

Issue 2:
The appellant highlighted Notification No. 81/2005-Cus and 33/2005-CE, granting concessional rates and full exemption from Central Excise duty for machinery used in power generation from non-conventional materials. This indicated the government's intent to provide benefits for items used in power generation. Additionally, the appellant referenced a specific case to support their argument that turbines and generators imported for use in projects converting specified wastes into energy should be eligible for the benefits under Notification No. 6/2002-CE.

The respondent argued that a previous case decision applied to both imports and domestic manufacturers, suggesting that turbines and generators could be used with any steam source. They contended that turbines and generators were not devices converting waste into energy, as waste conversion occurred in the boiler, not in the turbine or generator. The respondent relied on the decision of Triveni Engineering & Industries Ltd. to support their stance.

After reviewing the submissions, the Tribunal referred to the case of Triveni Engineering & Industries Ltd., where it was established that turbines were not eligible for exemption under Notification No. 6/2000-C.E. The Tribunal emphasized that the exemption was specific to devices converting waste into energy, which was done in the boiler, not in the turbine. The Apex Court upheld this decision, further supporting the denial of benefits under Notification No. 6/2002-CE for CVD calculation.

The Tribunal dismissed the appeal, stating that the benefit of Notification No. 6/2002-CE could not be extended to the appellants for CVD calculation. The contention regarding the retrospective effect of certain notifications was also rejected, leading to the dismissal of the appeal based on the findings mentioned above.