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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 ..... Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri K.L. Handa, Advocate, for the Appellant. Shri B.L. Soni, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. - Heard learned Advocate for the appellants and learned DR for the respondent. The appellants are challenging the order passed by the Commissioner (Appeals), Faridabad on 7-10-09 whereby except setting 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 impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption to all the goods supplied to United Nations or an international organization for their official use or supplied to the projects financed by the said United Nations or an international organization and approved by the Government of India. The notification in the very opening para states that "it is necessary in the public interest to do so, hereby exempts all goods................when supplied to United Nations or an international organization for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, and other than those listed in the Annexure; and (i) If the said project has been approved by the Government of India, a certificate from the executive head of the Project implementing Authority and countersigned by an officer not below the rank of a Joint Secretary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 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 go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the project but to the contractor. Merely because the contractor may utilize 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. 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 cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me has been considered in the Escorts Construction case. It is stated on behalf of the appellants that in case the Co-ordinate Bench disagrees with the earlier decision of the Tribunal, it is necessary for the Division Bench to refer the matter to a Larger 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 Orga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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