2019 (4) TMI 1534 - AT - Central Excise

Supply of goods for setting up of Mega Power against International Competitive Bidding (ICB) - sub-contract - benefit of N/N. 6/2002-CE dated 01.03.2002 as amended - denial of the benefit of the exemption on the ground that the appellant had not directly participated in the International Competitive Bidding - HELD THAT - Notification only stipulates that the excisable goods supplied against an ICB are eligible from payment of duty. In our view there is no condition stipulated in the notification that the person claiming benefit for the goods cleared should have been the bidder in ICB for the mega power project. In our view so long as the goods are supplied to such contract awarded to a person who took part in the International Competitive Bidding, the benefit is not deniable. Bharat Heavy Electricals Ltd. (BHEL) had participated in the ICB and entered into an agreement with M/s. Jindal Power Ltd. (Project Authority) for setting up of the 1000MW Raigarh Thermal Power Project in Chhattisgarh. This project received the status of Mega Power Project from the Joint Secretary of the Ministry of Power. BHEL had sub-contracted the Appellant for the supply of boilers and parts for setting up of the plant. The Project Authority Certificate also clearly recognized the Appellant as one of the sub-contractors for the supply of boilers and parts for the aforesaid project. Tribunal under similar circumstances, in the case of M/S TOSHNIWAL INDUS. PVT. LTD. VERSUS CCE, JAIPUR-II 2017 (5) TMI 387 - CESTAT NEW DELHI had decided the issue rejecting a similar contention raised by the department as in the present case, holding that sub-contractor did not take part in International Competitive Bidding. Thus, Appellant is entitled to avail benefit of Notification No. 6/2002-CE as amended vide Notification No. 48/2004-CE and its successor notification No. 6/2006-CE. Hence, the demand confirmed by the Commissioner in the impugned orders is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Change of cause title due to a company name change
- Admissibility of exemption under Notification No. 6/2002-CE for removal of excisable goods without payment of duty

Change of Cause Title:
The appellant filed miscellaneous applications seeking a change of cause title due to a company name change, which was allowed by the Tribunal based on the records submitted by the appellant.

Admissibility of Exemption under Notification No. 6/2002-CE:
The appeals were against two separate Orders-in-Original covering different periods but with a common issue regarding the admissibility of exemption under Notification No. 6/2002-CE for removing excisable goods without payment of duty. The appellant, engaged in manufacturing boiler parts, cleared goods both with and without duty payment for projects funded by International Competitive Bidding. The Department contended that the appellant, not participating in the bidding process, was not eligible for exemption. The Commissioner confirmed duty demand, stating that the notification did not mention sub-contractors' eligibility for exemption. The appellant argued that participation in bidding was not a requirement as long as goods were supplied to a project awarded to a bidder. The Tribunal, citing precedent cases, held that the appellant was entitled to the exemption as the goods were supplied to a project awarded to a bidding participant. The Tribunal set aside the Commissioner's orders, allowing the appeals and the change of cause title applications.

Conclusion:
The Tribunal ruled in favor of the appellant, allowing the change of cause title applications and setting aside the Commissioner's orders. The appellant was deemed eligible for the exemption under Notification No. 6/2002-CE, as the goods were supplied to a project awarded to a participant in the International Competitive Bidding process. The decision was based on previous rulings and established principles, providing consequential relief to the appellant.