2025 (3) TMI 1449 - AT - Central Excise

Entitlement to exemption under N/N. 12/2012-CE for goods supplied against International Competitive Bidding (ICB) and to Mega Power Projects - reversal of an amount equal to 6% of the value of exempted goods under Rule 6 of the Cenvat Credit Rules 2004 - HELD THAT - In the instant case there is no dispute that the goods have been supplied against International Competitive Bidding. Therefore it is prudent to examine if these goods when imported in India are exempt from duties of customs and the additional duty leviable under sub-Section 1 of Section 3 of the Custom Tariff Act 1975. It is not in dispute that the goods have been supplied by the appellant to Mega Power Project(s) as certified by the Joint Sectary to the Government of India in the Ministry of Power. We find that the lower authority have ruled that the Electrical Power Cables are not covered under Chapter Heading 98.01 of the Customs Tariff Act hence these are not exempt from basic Customs Duty as well as Additional Customs Duty. This reasoning seems incorrect as the Central Excise Tariff Act does not have any corresponding Tariff entry as it exists in Customs Tariff Act 1985. This issue has already been decided by the Tribunal in the case of Cords Cable Industries Pvt. Ltd. Vs. Commissioner of C. Ex. Jaipur-I 2016 (9) TMI 1126 - CESTAT NEW DELHI wherein it was held that electrical wires cables supplied to Mega Power Projects are fully exempt under the corresponding Central Excise Notification read with Customs Notification. However Condition No. 93 to the Notification No. 12/2012-CUS dated 17.03.2012 also prescribes certain requirements to be fulfilled for availment of the exemption from Customs Duty as well as Additional Customs Duty. These conditions are factual in nature as to whether Power Purchasing State has constituted the Regulatory Commission with full powers to fix Tariffs and whether the Power Purchasing States have undertaken to carry out distribution reforms as laid down by the Ministry of Power. It also needs to be seen whether procurement Certificates have been issued by the designated Authorities as per Sr. No. (b) and (c) of the Condition No. 93. The documents submitted along with appeal do not contain all the relevant details which are to be seen in the matter. It is fit to remand the matter to the adjudicating authority to see fulfilment of Condition No. 93 of Notification No. 12/2012-CUS dated 17.03.2012. If these Conditions are satisfied then the appellant will not be required to reverse an amount as demanded by the department. The Bench directs the Appellant to produce relevant documents/Certificates in respect of supplies involved in the case before the adjudicating authority within one month for determining whether the Condition No. 93 of the said Customs Notification is satisfied in the case. The adjudicating authority also directed to decide the issue within 3 months from the date of production of above documents as the matter is quite old. The appeals are disposed off by way of remand to the adjudicating authority.

1. ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment include:

Whether the appellant, M/s. Apar Industries Ltd, is entitled to the exemption under Notification No. 12/2012-CE for goods supplied against International Competitive Bidding (ICB) and to Mega Power Projects.
Whether the appellant is liable to reverse an amount equal to 6% of the value of exempted goods under Rule 6 of the Cenvat Credit Rules, 2004, due to non-fulfillment of conditions in the said notification.
Whether the demand raised by the department is time-barred due to the absence of suppression of facts by the appellant.
Whether the imposition of interest and penalty under Section 11AA and Section 11AC of the Central Excise Act, 1944, is justified.

2. ISSUE-WISE DETAILED ANALYSIS

Exemption under Notification No. 12/2012-CE

Relevant Legal Framework and Precedents: The appellant argued that the exemption under Notification No. 12/2012-CE is applicable to goods supplied against ICB and to Mega Power Projects, as per conditions 41 and 43. The appellant relied on precedents such as M/s Kent Introl Pvt. Ltd Vs. CCE Nasik and CBEC Circular No. 334/8/2016-TRU.
Court's Interpretation and Reasoning: The Tribunal noted that the exemption under Sr. No. 336 and 338 of the Notification is subject to specific conditions. The exemption is applicable if the goods, when imported, are exempt from customs duties. The Tribunal found that the lower authorities had incorrectly interpreted the conditions, limiting the exemption to imported goods only.
Key Evidence and Findings: The appellant supplied goods to Mega Power Projects against ICB, supported by Project Authority Certificates. The Tribunal examined the relevant entries in the Notification and Customs Tariff.
Application of Law to Facts: The Tribunal held that the conditions for exemption under the Notification were not limited to imported goods. The goods supplied by the appellant were eligible for exemption as they were supplied against ICB and to certified Mega Power Projects.
Treatment of Competing Arguments: The Tribunal rejected the department's argument that the exemption was only applicable to imported goods, citing precedents that supported the appellant's interpretation.
Conclusions: The Tribunal concluded that the appellant was entitled to the exemption under Notification No. 12/2012-CE, subject to verification of certain factual conditions.

Reversal of 6% under Rule 6 of the CCR, 2004

Relevant Legal Framework and Precedents: Rule 6(6)(vii) of the CCR, 2004, provides that certain goods are exempt from reversal requirements if supplied against ICB or to Mega Power Projects.
Court's Interpretation and Reasoning: The Tribunal found that the goods supplied by the appellant met the criteria under Rule 6(6)(vii), as they were supplied against ICB and to Mega Power Projects.
Key Evidence and Findings: The Tribunal considered the relevant entries and conditions in the Notification and Customs Tariff Act.
Application of Law to Facts: The Tribunal determined that the appellant was not required to reverse 6% of the value of exempted goods, provided certain conditions were met.
Treatment of Competing Arguments: The Tribunal addressed the department's contention regarding the applicability of Rule 6(3)(i) and found it inapplicable due to the exemptions under Rule 6(6)(vii).
Conclusions: The Tribunal held that the appellant was not liable for reversal under Rule 6, subject to verification of compliance with certain conditions.

Time-Barred Demand and Suppression of Facts

Relevant Legal Framework and Precedents: The appellant argued that the demand was time-barred as there was no suppression of facts. The department contended that the appellant failed to disclose relevant details in their returns.
Court's Interpretation and Reasoning: The Tribunal did not explicitly rule on this issue, as the matter was remanded for verification of conditions.
Key Evidence and Findings: The Tribunal noted the appellant's communications with the department but did not make a definitive finding on suppression.
Application of Law to Facts: The Tribunal deferred a decision on this issue pending further verification.
Treatment of Competing Arguments: The Tribunal acknowledged the department's arguments but focused on the need for factual verification.
Conclusions: The Tribunal remanded the matter for further examination, leaving the issue of time-barred demand open.

Imposition of Interest and Penalty

Relevant Legal Framework and Precedents: Sections 11AA and 11AC of the Central Excise Act, 1944, pertain to interest and penalties for non-payment of duty.
Court's Interpretation and Reasoning: The Tribunal did not make a final determination on the imposition of interest and penalty, as the primary issue was remanded for further examination.
Key Evidence and Findings: The Tribunal focused on the exemption eligibility and did not delve into interest and penalty specifics.
Application of Law to Facts: The Tribunal deferred a decision on interest and penalty, pending resolution of the primary exemption issue.
Treatment of Competing Arguments: The Tribunal acknowledged the appellant's contention that the demand was not tenable, thus questioning the basis for interest and penalty.
Conclusions: The Tribunal remanded the matter, leaving the issue of interest and penalty open for further examination.

3. SIGNIFICANT HOLDINGS

Preserve verbatim quotes of crucial legal reasoning: The Tribunal cited several precedents, emphasizing that the exemption under Notification No. 12/2012-CE is not limited to imported goods. The Tribunal quoted prior decisions that supported the appellant's interpretation.
Core principles established: The Tribunal reinforced the principle that exemptions under the Notification apply to goods supplied against ICB and to Mega Power Projects, irrespective of whether they are imported or domestically manufactured.
Final determinations on each issue: The Tribunal remanded the case to the adjudicating authority for verification of compliance with Condition No. 93 of Notification No. 12/2012-CUS. The Tribunal directed the appellant to submit relevant documents for this purpose.

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