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TMI Blog2010 (11) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... s and parts thereof, busducts, AC/DC Locomotives and parts thereof classifiable under chapter sub-heading No. 8504.00, 8544.00, 8601.00, 8602.00 and 8607.00 of the Central Excise Tariff Act, 1985. 4. It is the case of the department that pursuant to the scrutiny of RT-12 for the month of December, 1999 and January 2000 filed by the appellants it was observed by the Central Excise Officers that the appellants got cleared 12 sets of High Voltage Rectifiers valued at Rs. 7,00,000/- per set to the Chief Manager Project, National Aluminium Co. Ltd., Damanjodi, Orissa under invoice No. T-658, T-659 both dated 23-12-99, T-693 dated 31-12-99 and T-726 dated 10-1-2000 claiming concessional rate of duty at the rate of 8% Adv. on the basis of Notification No. 5/99-C.E., dated 28-2-99. The appellants had also submitted a copy of the certificate dated 15-2-99 issued by Ministry of Environment and Forests, New Delhi addressed to the Assistant Commissioner, Central Excise, Ranipet. It was claimed by the appellants that the said High Voltage Rectifier were parts of Electrostatic Precipitation Systems mentioned in the said notification and said EPS system were being supplied by M/s. BHEL, Ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the high voltage rectifier was part of EPS was never disputed and the same did not form part of challenge in the show cause notice. Placing reliance in the Circular No. 35/11/94 dated 7-9-94 and Notification No. 78/90-C.E., dated 28-3-90, it was contended that the present notification is nothing but the one which was brought into force in supersession of the earlier Notification No. 78/90-C.E. and the circular dated 7-9-94 which related to the said Notification No. 78/90-C.E. applies with equal force to the said notification in question and considering the same it cannot be said that the appellants have in any manner violated the condition of the said notification in question or that authorities could have denied the benefit thereunder to the appellants in relation to the goods in question. 6. Learned Advocate for the appellants further submitted that if the view that is sought to be taken by the department in relation to the notification in question is accepted, it would defeat the very purpose of the notification. In that regard, it was sought to be contended that the Tribunal in various cases has held that the benefit of exemption notification cannot be restricted to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rests certifies in each case to the effect that the goods are intended for pollution control purposes". In other words if the Electro Static Precipitator System and/or its parts are intended for pollution control purposes and is accordingly certified by an officer of the rank of Deputy Secretary to the Government of India in the Ministry of Environment and Forests the manufacturer of such goods would be entitled to clear the goods than concessional rate of duty specified under the said notification. Undoubtedly, certificate in that regard has to be issued in each of the cases. 9. In the case in hand, it is not disputed that there was a certificate dated 15-2-99 issued by the Joint Director from the Ministry of Environment and Forests, Government of India addressed to the Assistant Commissioner of Central Excise & Customs, Ranipet in relation to the products described as Electro Static Precipitator and its parts" described in the same as one quantity. 10. As already stated above, it is also undisputed fact that the appellants cleared 12 sets of high voltage rectifier in the year 1999 by claiming concessional rate of duty under the said notification on the strength of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision is made in the notification in question. No circular can travel beyond the scope of the notification and if at all it does this to be ignored. Circulars are meant for mere explanation and not to enlarge or breeze of the scope of the notification. Being so, circular in question can be of no help to the appellants in the matter in hand. 13. It is sought to be contended that the finding about absence of evidence regarding the goods in question being part of Electro Static Precipitator System is beyond the scope of the show cause notice. It is difficult to accept this contention. In the show cause notice it was specifically stated thus :- "Since this Excise Duty exemption certificate grants exemption to those items which are mentioned in the list No. 7(1) of S. No. 272 of the Notification No. 5/99 and the manufactured by the unit M/s. BHEL, Ranipet, therefore, the High Voltage Rectifier manufactured and cleared by M/s. BHEL, Jhansi are not eligible to the said concession and were liable to be cleared at full rate of duty @ 16% Adv. leviable at that time and this fact was intimated to the party by the Superintendent, Central Excise, Range-I Jhansi by his letter C. No. 20/M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or pollution control. In fact even in the appeal filed before the Tribunal there is no challenge to the said finding. 14. Where a particular goods form part of larger system or a bigger item is purely a question of fact, being so, when the same is disputed, the party asserting that it forms part of bigger item or system has necessarily to prove the same by producing cogent evidence in that regard. Once there is a clear finding arrived at by the fact finding authority and inspite of appellate remedy being available such finding of fact is not challenged, it goes without saying that the fact in question stands established in terms of such finding by the fact finding authority. Applying this elementary rule of law to the facts of the case it is to late for the appellants now to contend that the goods in question form part of Electro Static Precipitator System. The contention about absence of challenge to the said fact or that the adjudicating authority having exceeding the scope of show cause notice are totally devoid of substance. 15. Even otherwise, if one peruses the certificate dated 15-2-1999 by no stretch of imagination it can be said that in the absence of proper ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s granted by the Apex Court to the said order, it allowed the claim of the sub-contractor. Plain reading of the order would disclose that the same does not refer to the facts and analysis of the case. But merely refers to its earlier decision in CST Limited v. Hyderabad-I case. Obviously, therefore, same cannot be held to lay down any point of law. 18. In CST Limited v. Hyderabad-I the benefit was sought to be granted notification to the sub-contractor with the following observations :- "The appellants are sub-contractor of M/s. BHEL. M/s. BHEL is executing the Mega Project for Kahalgaon Super Thermal Power Project by International Bidding. The appellants have submitted all the relevant records. The appellants are also found in the list of sub-contractors. Since the goods are supplied by the appellants to BHEL, who are executing the project by International Competitive Bidding, it is very clear that the goods cleared by the appellants should be considered as "goods supplied against International Competitive Bidding". There is absolutely no need that the appellants themselves should have been the bidder in International Competitive Bidding. In huge projects, the main contractor do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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