2018 (1) TMI 1124 - AT - Central Excise

Benefit of N/N. 108/95-CE dated 28.08.95 - Whether the goods cleared without payment of duty under N/N. 108/95 dt. 28.8.1995 to the private contractor, instead of Project Implementing Authority is correct or not and the appellants is entitled to avail the benefit of the said notification? Held that - the identical issue has been settled by Tribunal in favour of assessee in the case of Caterpillar India Pvt. Ltd. Vs CCE Pondicherry 2005 (3) TMI 243 - CESTAT, NEW DELHI holding that the goods supplied under Central Excise N/N. 108/95 could be to the contractor who is the implementing authority and need not be to the Project Implementing Authority - appeal allowed - decided in favor of appellant.

Summary

Issues:
Whether the goods cleared without payment of duty under Notification No.108/95 to the private contractor instead of the Project Implementing Authority are correct and if the appellant is entitled to avail the benefit of the said notification.

Analysis:
The case involved the appellants engaged in manufacturing motor vehicles who cleared AL tippers without duty payment based on a certificate issued by CGRRDA for a project funded by the Asian Development Bank. The show cause notice alleged discrepancies in the certificate and the actual goods supplied. The Deputy Commissioner initially dropped the proposals following a Tribunal decision in a similar case. However, the Commissioner (Appeals) later allowed the appeal of the Revenue, leading to the current appeal.

During the hearing, the appellant's counsel argued that the tippers were cleared based on a specific certificate for a rural road project funded by the Asian Development Bank. They pointed out that the insertion of Explanation 2 to the notification came after the goods clearance in question. The appellant also relied on a previous Tribunal decision in the case of Caterpillar India Pvt. Ltd., which had been upheld by the Madras High Court and the Supreme Court in subsequent judgments.

The Tribunal considered whether the goods were correctly cleared to the private contractor instead of the Project Implementing Authority under Notification No.108/95. Referring to the earlier decision in the Caterpillar India Pvt. Ltd. case, the Tribunal held that goods supplied under the notification could be to the contractor implementing the project and not necessarily to the Project Implementing Authority. Citing the affirmations by the Madras High Court and the Supreme Court, the Tribunal set aside the impugned order and allowed the appeal, granting any consequential relief as per the law.

In conclusion, the Tribunal's decision in this case was based on the interpretation of the relevant notification and previous legal precedents, ultimately ruling in favor of the appellant and allowing the appeal against the decision of the Commissioner (Appeals).