2023 (7) TMI 823 - AT - Central Excise

Exemption to Agro Waste Fired Boilers - parts manufactured by each unit did not constitute a full boiler - only allegation of the department is that each assessee unit has cleared parts of a boiler and does not constitute a complete boiler for which the exemption is not applicable - extended period of limitation - N/N. 6/2006-CE and subsequent notification 12/2012. HELD THAT - From the above notification, Sl.No.16 of List 8 refers to Agricultural forestry, Agro-industrial, Industrial, Municipal and Urban waste conversion device producing energy. Again, Sl.No.21 refers to parts consumed within the factory of production of such parts for the manufacture of goods specified at S.Nos. 1 to 20 above . It can be seen from Notification 6/2006 as well as Notfn 12/2012 that these notifications provide the exemption from payment of excise duty on the agricultural, forestry, agro-industrial, industrial municipal and urban waste conversion device producing energy and also for parts if such parts are consumed within the factory. In the present case, a sample purchase order is furnished by the assessee. This document shows that the purchase order is for supply of Agro Waste (Palm fibre) Fired Reciprocating Grate Boiler Agricultural Waste Conversion Device Producing Energy. The said purchase order is issued by M/s.Ruchi Soya Industries Ltd. The prices quoted are for supply of the entire boiler and erection and commission. It is no where mentioned in the purchase order that the payment is to be made for separate parts. It is stated in the purchase order that the equipment supply shall be completed in 8 months to suit commissioning within 9 months from the date of the purchase order along with 10% advance amount. The assessee company (not individual units) is liable to pay liquidated damages for the delay in supply and commissioning. All these go to show that the purchase order is for a complete boiler - On perusal of a sample invoice it is seen that the name and address of the factory is shown as assessee company i.e., M/s.Thermodyne Technologies Pvt. Ltd. The consignee name is shown as M/s.Ruchi Soya Industries Ltd., Unit II. The invoice which is for clearance of parts corresponds to the purchase order. At the coloum of description of the goods, it is mentioned as 1x30 TPH AGRO WASTE (PALM FIBRE FIRED RECIPROCATING GRATE BOILER . The two parts cleared as per this invoice is Economiser Block-I and Economiser Block-II. It is also stated in the invoices that the assessee is availing the exemption as per Notification 12/2012. It needs to be mentioned that the purchase order and invoice above (relating to M/s.Ruchi Soya Industries Ltd.) is referred by the adjudicating authority to consider the issue of cum duty price benefit. The issue of having to clear parts of boiler has been examined by the Board and in order to maintain uniformity in the classification of excisable goods and the levy of duty on boiler designed for agricultural or municipal waste as also conventional fuel it is clarified by the Board that benefit of notification No.205/88-CE dated 25.5.1988 (subsequent notification 6/2006) will be available for such goods even when these goods are cleared in CKD / SKD condition provided that evidence is produced that goods cleared as parts form a complete device and that evidence is also produced for supply of such complete device to the buyer - Para 2 (a) (b) (c) of Trade Notice would show that parts were cleared to the customer site. Merely because the Trade Notice uses the words CKD/SKD condition, it does not mean that the entire boiler has to be made under one roof and then knocked down and transported to the site of the customers. The difficulty represented by the trade and the intention of issuing the Trade notice has to be understood. In the case of COMMISSIONER OF C. EX., PUNE-I VERSUS THERMAX BOBCOCK WILCOX LTD. 2005 (1) TMI 145 - CESTAT, MUMBAI the issue was the classification of pressure parts of boiler removed in several consignments whether to be regarded as a boiler in complete form and whether classifiable as boiler under 8402.10 or under 8402.90 as parts. The Tribunal held that fact that boiler in unassembled form is removed in several lots on different dates itself does not mean that parts only and not the whole boiler is cleared from factory for the reason that, the assessee has a contract to erect and commission a boiler. It was held that the parts are to be classified as complete machine under 8402.10, by upholding the application of Rule 2(a) of Interpretative Rules. Extended period of limitation - HELD THAT - The adjudicating authority has taken note of the fact that the earlier decision was in favour of the assessee and also that there was CERA and departmental audit conducted. There is no positive act of suppression of facts established by the department. We therefore hold that the demand set aside on the ground of limitation requires no interference. As already discussed there are no grounds to confirm the demand for the normal period and requires to be set aside. Appeal allowed.

Summary

Issues Involved:
1. Eligibility for exemption under Notification 6/2006-CE and 12/2012-CE.
2. Invocation of the extended period for demand.

Summary:

Issue 1: Eligibility for Exemption under Notification 6/2006-CE and 12/2012-CE

The core issue was whether the assessee was eligible for exemption under Notification 6/2006-CE and its subsequent amendment, Notification 12/2012-CE. The department contended that the assessee had cleared parts of boilers, not complete boilers, thus not qualifying for the exemption. The assessee argued that they received orders for complete boilers, which were then manufactured in parts by different units due to space constraints and later assembled at the customer's site. The assessee cited Trade Notice No.40/92 and previous favorable judgments, including a Supreme Court decision, to support that parts cleared for assembling into a complete boiler at the customer's site should qualify for the exemption. The Tribunal held that the parts cleared by the assessee constituted a complete boiler, thus eligible for the exemption under the notifications.

Issue 2: Invocation of the Extended Period for Demand

The department issued show cause notices proposing to deny the exemption and demand duty for an extended period, alleging suppression of facts. The adjudicating authority, however, found no misstatement or suppression of facts, restricting the demand to the normal period. The Tribunal upheld this view, noting that the assessee had regularly informed the department about their manufacturing activities, and audits had been conducted without raising this issue previously. Therefore, the extended period for demand was not invocable.

Conclusion:

The Tribunal concluded that the assessee was eligible for the exemption under Notification 6/2006-CE and 12/2012-CE as the parts cleared constituted a complete boiler. The demand for the normal period was set aside, and the extended period was not invocable due to the lack of suppression of facts. The appeals filed by the assessee were allowed, and those by the department were dismissed.