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2015 (6) TMI 657 - AT - Central ExciseGoods meant for Mega power project / Independent power project - international competitive bidding (ICB) - Denial of exemption under Notification No.6/06-CE dated 01.03.2006 and Notification No.6/2002-CE dated 01.03.2002 - Held that - Joint Secretary in the Ministry of Power in the certificate issued by him in respect of power project, in question, has certified that the power project is interstate Thermal Power Project of capacity of 1000 Mega Watt and has also certified regarding fulfilment of the conditions 86 (a) (i) and (a) (ii) the condition No.86 and in respect of the condition No.86 (a) (iii) the Joint Secretary in his letter dated 17.08.2005 addressed to M/s. Jindal has clarified that this condition has not applicable for independent power project. This fact has also been taken note of by the Commissioner in para 5.1.3 of the impugned order. When a particular condition prescribed in Notification No. 21/02-Cus. for full customs duty exemption is not applicable and for this reason, the condition cannot be satisfied, its fulfilment cannot be insisted in accordance with the principle of lex non cogit ad impossiblia which is applicable to the tax matters also. We, therefore, hold that the denial of exemption under Notification No.6/02 -CE and 6/06-CE on the ground that the goods imported would not be eligible for customs duty exemption under Notification No.21/03-Cus. is not correct. - decided in favour of assessee.
Issues:
- Interpretation of customs duty exemption conditions under Notification No.21/2002-Cus for goods supplied against international competitive bidding for a thermal power project. - Applicability of conditions for customs duty exemption to central excise duty exemption under Notification No.6/02-CE and 6/06-CE. - Certification requirements by the Joint Secretary in the Ministry of Power for customs duty exemption. Analysis: 1. Interpretation of Customs Duty Exemption Conditions: The appellant supplied iron and steel items for a thermal power project under international competitive bidding at nil duty rate under Notification No.6/02-CE. The dispute arose regarding the fulfillment of conditions under Notification No.21/2002-Cus for customs duty exemption. The Commissioner confirmed a duty demand due to non-fulfillment of a specific condition related to the power purchasing state's agreement to provide recourse for outstanding payments. However, the Joint Secretary clarified this condition was not applicable to independent power projects, which the project in question was. The Tribunal held that if a condition is impossible to fulfill, as in this case, it cannot be insisted upon, following the principle of lex non cogit ad impossiblia in tax matters. 2. Applicability of Conditions to Central Excise Duty Exemption: The appellant argued that conditions for customs duty exemption should not be applied to central excise duty exemption under Notification No.6/02-CE and 6/06-CE. They relied on a Tribunal judgment in Kent Introl Pvt. Ltd. vs. CCE, Nashik, emphasizing that if a specific condition for customs duty exemption is not applicable, its fulfillment cannot be insisted upon for central excise duty exemption. The Tribunal agreed and set aside the Commissioner's order, stating that the denial of exemption based on unfulfilled customs duty conditions was incorrect. 3. Certification Requirements by Joint Secretary: The Joint Secretary certified that the power project was an interstate thermal power project of 1000 MW and fulfilled certain conditions under Notification No.21/2002-Cus. The Commissioner acknowledged the fulfillment of some conditions but disputed one specific condition related to payment recourse by the power purchasing state. However, the Tribunal held that since this condition was not applicable to the project, its fulfillment could not be insisted upon, leading to the allowance of the appeal. In conclusion, the Tribunal ruled in favor of the appellant, emphasizing that impossible conditions for customs duty exemption should not hinder central excise duty exemption, especially when such conditions are not applicable to the specific project in question. The judgment highlighted the importance of interpreting exemption conditions strictly and in line with the practicalities of each case.
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