2018 (9) TMI 1568 - AT - Central Excise

Supply of items for setting up independent thermal power plant - Supply against International Competitive Bidding (ICB) - Benefit of Sl. No. 91 of N/N. 06/2006-CE dt. 01.03.2006 denied - goods required for setting up of Mega Power Project are exempt from payment of customs duty on import under Sl. No. 400 of N/N. 21/2002-Cus. dt. 01.03.2002 Held that - Identical issue decided in the case of BHARAT HEAVY ELECTRICALS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE CHENNAI III COMMISSIONERATE 2018 (8) TMI 1566 - CESTAT CHENNAI , where it was held that It is unequivocally clarified by the Ministry that power project is not a mere expansion of existing power project, but is an independent power project, which is newly setup. Further as per N/N. 12/2012-Cus. Dt.17/3/2012, the said power project is specified in Entry 53 of the List 32A - but for the change in the name of the project, the contractor, contractee and the purpose of the contract examined in the earlier Final Order remain the same. Going therefore by the maxim res judicata pro veritate accipitur, the appellant should succeed. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Denial of excise duty exemption under Notification No. 06/2006 for a project setting up a thermal power plant.
2. Interpretation of whether the project is an expansion of an existing power project or a standalone project.

Analysis:
1. The appellant, a manufacturer of various equipment, availed excise duty exemption under Notification No. 06/2006 for supplying goods to a thermal power plant project. The Revenue issued a Show Cause Notice proposing to deny the exemption based on documents indicating the project as an expansion rather than a standalone project. The appellant contested the denial, but the adjudicating authority upheld the demand. The appellant appealed, citing a previous Tribunal ruling in their favor on a similar issue.

2. The Tribunal analyzed the documents and certificates related to the project, emphasizing that even though the term "expansion" was used, it was clarified by the Ministry that the project was a standalone one newly set up. The Tribunal referred to previous orders where similar disputes were resolved in favor of the appellant, highlighting that the project was recognized as a standalone one for duty exemption purposes. The Tribunal noted consistency in decisions and dropped the demand, ruling in favor of the appellant based on the principle of res judicata.

In conclusion, the Tribunal set aside the Commissioner's order, allowing the appeal and providing consequential reliefs. The decision was based on the project being deemed a standalone one for duty exemption purposes, supported by previous rulings and clarifications from the Ministry. The appellant's claim for excise duty exemption under Notification No. 06/2006 was upheld, emphasizing the project's status as a newly set up independent power project.