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TMI Blog2010 (4) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... aside the penalty, the order passed by the adjudicating authority has been confirmed. The adjudicating authority vide his order dated 29-8-08 had denied the benefit of Notification No. 108/95-C.E., dated 28-8-95 to the appellants and had confirmed the demand of Rs. 3,76,473/- besides imposing penalty of Rs. 50,000/- . 2. The point for consideration relates to the claim of benefit under Notification No. 108/95-C.E., dated 28-8-95. While challenging the impugned order, placing reliance in the decision in the matter of IBM India Pvt. Ltd. v. CCE reported in 2008 (223) E.L.T. 429, Caterpillar India Pvt. Ltd. v. CCE reported in 2005 (185) E.L.T. 430, Spic Organics Ltd. v. CCE reported in 2006 (199) E.L.T. 73, Automatic Electric Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their official use or supply to the projects financed by the said United Nations or an international organization and approved by the Govt. of India........................" The proviso to the said notification reads thus - "Provided that before clearance of the said goods, the manufacturer produces before the Assistant Commissioner of Central Excise having jurisdiction over his factory, - (a) in case the said goods are intended for the official use by the United Nations or an international organization, a certificate from the United Nations or the international organization that the said goods are intended for such use; (b) In case the said goods are - (i) &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to the Government of India, in the concerned Line Ministry in the Government of India, 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; and (ii) If the said project has been approved by the Government of India, for implementation 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 (emphasis supplied), and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Development Bank. In other words, the supply of goods, in order to avail the exemption under the said Notification, has necessarily to be to the project specified in the said notification. Apparently, the exemption is available to the goods which are meant exclusively for the project. The goods which are obtained by the contractor in his own name cannot be construed to be the goods exclusively for the project because such goods have ownership of the contractor and can be used for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. It is settled law that for the purpose of claiming exemption from payment of tax in respect of a particular commodity or goods, the assessee itself must bring on record sufficient materials to show that it comes within the purview of the exemption notification. Various decisions of the Supreme Court are very clear on this point, the latest being in the matter of BOC India Ltd. v. State of Jharkhand reported in 2009 (237) E.L.T. 7 (S.C.). Since the certificate produced on record apparently indicates that the purchaser of the goods to be contractor, it prima-fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench and not to ignore the decision already delivered on the point of issue. It is well settled law that in case any decision has been delivered either in ignorance of any provision of law or contrary to any of the provisions of law, the same cannot have binding effect on the Tribunal or upon any Court dealing with the same issue. Certainly the Tribunal or the Court can ignore such a decision, same being a decision per-incuriam. 8. It is also to be noted that neither in Spic Organics Ltd. nor Automatic Electric Ltd. or H. Sarkar & Co. case, one can find consideration of the issue which has been considered by this Bench in Escorts Construction Equipment Ltd. A decision can have a binding effect only when the same deals with the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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