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TMI Blog2009 (5) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... rther time was granted in the matter. Accordingly, the matter was adjourned to 6th May, 2009 on which day, when the matter came up for hearing, at the request of the Chartered Accountant for the applicants, the matter was again adjourned to this date. 2. The appellants are manufacturer of excavator, loaders and earthmoving machinery which are classified under Chapter Heading 8429.00 of the Schedule to the Central Excise Tariff Act, 1985. The period of dispute is from October, 2007 to February, 2008 during which the appellant cleared earthmoving machinery without payment of duty availing benefit under Notification No. 108/95 dated 28-8-95. The benefit was sought to be denied by the department, by issuing show cause notice dated 10-7-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... organisation specified in the said notification in order to avail the benefit thereunder. Being so, there is no case of any illegality committed by the authorities below while passing the impugned order and therefore, it does not warrant stay of the said order. 5. In the course of hearing on the last date of hearing i.e. on 4-5-2009 to a specific query by the Tribunal as to how the applicant is able to point out that the finding arrived at by the adjudicating authority in the impugned order to the effect that, "machines were purchased by the contractor independently and not from fund allocated to the project", either to be perverse or not borne out from the records, learned C.A. apart from drawing our attention to the certificate dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation by the Government of a State or a Union Territory, a certificate from the executive head of the Project Implementing Authority and countersigned by the Principal Secretary or the Secretary, Finance as the case may be, in the concerned State Government or the Union Territory, that the said goods are required for the execution of the said project, and that the said project has duly been approved by the Government of India for implementation by the concerned State Government. A plain reading of the above relevant portion of the Notification discloses that exemption to the goods is available only in case of the goods which are intended to be supplied "to project" financed by the World Bank or Asian Development Bank or any International ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case admittedly the goods in question were supplied to the projects". That is not the case in the matter in hand. In the case in hand, there is specific defence raised by the Revenue that the goods in question are not supplied to the project but to the contractor. Merely because the contractor may utilise the said goods in the project, that does not mean that the goods are supplied to the project. Being so, the decisions in Caterpillar India Pvt. Ltd. and in IBM India Pvt. Ltd. are not of assistance to the applicants to contend that similar view is required to be taken in the matter in hand and therefore, stay should not be granted as a matter of course. 7. It is settled law that for the purpose of claiming exemption from pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of res judicata is attracted. Each stay application and the relief of waiver of pre-deposit has to be granted depending upon the facts of the case before the Tribunal and points arising therein for consideration. 11. The Apex Court in Ravi Gupta v. Commissioner Sales Tax, Delhi reported in 2009 (237) E.L.T. 3 (S.C.) has clearly held that such petitions should not be disposed of in a routine manner unmindful of consequences flowing from the order requiring the assessee to deposit full or part of the demand, nor there can be universal rule that the waiver of pre-deposit should be as a matter of course. No order in such matter can be passed which could not be sustained on the touchstone of fairness, legality and public interest. 12.& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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