2018 (12) TMI 551 - AT - Central Excise

Clearance of industrial valves without payment of duty - International Competitive Bidding (ICB) - N/N. 6/2006-CE dt. 1.3.2006 - requirement of production of a certificate from a duly authorized officer of the Director General of Hydro Carbons in the Ministry of Petroleum and Natural Gas, Government of India - it was alleged that neither the appellant nor the sub contractor had produced such a certificate - Held that - The remand directions of CESTAT in the said final order were in a very narrow compass. The matter was remanded to the adjudicating authority only to cause verification whether the certificates produced later meet the requirement of the notification. The said Tribunal s order also clarified that the exemption is available only in cases where necessary certificates to ensure its proper end-use is produced. Quite evidently, beyond these directions, the adjudicating authority should not have caused further tooth-combing of the matter. The dispute whether for benefit of Notification No.6/2006-CE, the conditions of Customs Notification No.21/2002-Cus. are required to be fulfilled, has been laid to rest by the Hon ble High Court of Bombay in the case CCE Nashik Vs Kent Introl Pvt.Ltd. 2015 (11) TMI 1167 - BOMBAY HIGH COURT . The Hon ble High Court has held that such conditions of Customs notification are applicable only to the importer order and not to a domestic manufacturer. The refunds of ₹ 77,95,480/- and also ₹ 49,11,485/- respectively sanctioned to appellants in respect of clearances made claiming the very same Central Excise Notification No.6/2006-CE have been inter alia held as erroneous refunds, will also not sustain and are therefore set aside - Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Eligibility for exemption under Notification No. 6/2006-CE.
2. Compliance with conditions of Customs Notification No. 21/2002-Cus.
3. Verification of certificates for exemption eligibility.
4. Entitlement to refunds of duty paid under protest.
5. Scope of de novo adjudication as directed by CESTAT.

Detailed Analysis:

1. Eligibility for Exemption under Notification No. 6/2006-CE:
The appellants manufactured industrial valves and claimed exemption from excise duty under Notification No. 6/2006-CE, which was contingent upon the goods being exempt from customs duty under Notification No. 21/2002-Cus. The primary contention was whether the conditions of the customs notification, particularly the production of a certificate from the Director General of Hydrocarbons, were met. The Tribunal previously held that the conditions from the customs notification should be adapted mutatis mutandis for excise exemption, and the exemption should be granted if the goods were used in oil exploration activities.

2. Compliance with Conditions of Customs Notification No. 21/2002-Cus:
The department argued that the appellants did not fulfill the conditions of the customs notification, such as the timely production of certificates and other documentation. However, the Tribunal emphasized that the customs conditions should not be strictly applied to domestic manufacturers. The Bombay High Court's decision in CCE Nashik v. Kent Introls supported this view, stating that conditions applicable to importers need not be fulfilled by domestic manufacturers.

3. Verification of Certificates for Exemption Eligibility:
The Tribunal remanded the matter to the adjudicating authority to verify whether the certificates produced by the appellants met the notification's requirements. The adjudicating authority, however, went beyond this scope, analyzing additional conditions and documents, which was not in line with the Tribunal's directions. The Tribunal clarified that the exemption should be granted if the certificates ensured the proper end-use of the goods.

4. Entitlement to Refunds of Duty Paid Under Protest:
The appellants filed for refunds of duty paid under protest for clearances made to Reliance Industries Ltd. and Cairn Energy India Pvt. Ltd. The adjudicating authority initially sanctioned these refunds but later ordered their recovery, deeming them erroneous. The Tribunal found that the refunds were valid as the appellants had met the essential conditions for exemption, as per the Tribunal's earlier order and the Bombay High Court's ruling.

5. Scope of De Novo Adjudication as Directed by CESTAT:
The Tribunal's remand directions were limited to verifying the certificates' compliance with the notification requirements. The adjudicating authority's broader analysis was beyond the remand's scope. The Tribunal reiterated that the exemption should be granted if the certificates ensured the goods' proper end-use and that the conditions of the customs notification did not strictly apply to domestic manufacturers.

Conclusion:
The Tribunal set aside the impugned orders denying the exemption and ordering the recovery of refunds. It upheld the appellants' entitlement to the exemption and the refunds, emphasizing that the conditions of the customs notification should not be strictly applied to domestic manufacturers. The appeals were allowed with consequential benefits as per law.

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