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TMI Blog2014 (9) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared for the intended use specified in column No. 3 of the table. We further hold that such certificates have to be issued only post supply made by the District authority, as the said condition requires certificate to the effect that "such goods are cleared for the intended use". Thus, we also hold that the Commissioner has misconceived the condition by observing in the impugned order that such certificate is required to be obtained prior to clearance of the concerned goods/pipes - matter remanded back - Decided in favour of assessee. - Appeal No.E/328 & 322/12 and E/85749/13 - Final Order Nos. A/654-656/2014-WZB/C-II(EB) - Dated:- 6-3-2014 - P R Chandrasekharan and Anil Choudhary, JJ. For the Appellant : Shri V Sridharan, Sr. Adv. Shri Rajesh Kumar, CA For the Respondent : Shri Shobha Ram, Commissioner (AR) JUDGEMENT Per: Anil Choudhary: The appellant M/s GKC Projects Ltd. and M/s SEW Infrastructure Ltd. have preferred these appeals against Orders-in-Original No. 14-15/2011-C dated 25.11.2011 and No. 65-66/2012-C dated 8.11.2012 respectively passed by the Commissioner of Central Excise Service Tax, Nagpur. 2. The brief facts are that M/s. GKC P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W) placed Work Order on the Appellants vide Work Order NO. SEW/TW/NMC/2008 dated 22.11.2008 for fabrication of 2300 mm dia (OD) 12 mm thickness Pipe for Nagpur City Water Augmentation Scheme. Under this work order, SEW would supply MS Plates at GKC work site free of cost for fabrication of Pipes. The scope of work include all the items of fabrication of Pipes including manpower and machinery, material, unloading loading, stacking of plates edge preparation (pug gutting, grinding, finishing), rolling/bending to the required dia, tack welding, longitudinal scam and circumferential seam welding by SAW machines all required testing as per the technical specifications given by Nagpur Municipal Corporation. The consideration under this contract is ₹ 3,150/- per MT. SEW placed another Work Order No. SEW/TW/SSP/2008 dated 02.12.2008 for 20mm thick guniting around 12 mm thick pipe with wire mesh of 50 x 50 x 3.15 mm or equivalent weight per SQM for Nagpur City Water Augmentation Scheme Pench -IV. The consideration under this work order is ₹ 270/- per Sq.Mtr., excluding VAT. 2.3 The Appellants undertook the activity of manufacture and coating of pipes as a job-worker to SEW. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eventive officers of the Central Excise Dept, Head Quarters, Nagpur visited Appellants factory premises on 12.11.2009 for verification. The Departmental Officers recovered certain documents vide Panchanama dated 12.11.2009. The Departmental Officers also recorded a statement from Shri Vivekananda Rao NSSV, Asst. Manager (Taxation) of the Appellant's company on 24.11.2009 under Section 14 of the Central Excise Act, 1944. Shri Vivekananda Rao NSSV in his statement dated 24.11.2009, inter-alia, deposed that the Appellants are manufacturers of MS pipes and they manufactured MS pipes for CRSGC-SEW JV; that the pipes manufactured are 2.3 meters outside dia meter by 10m length; that the process of manufacture is that CRSGC-SEW JV are purchasing MS plates from Steel Authority of India and supplying the same free of cost to the Appellants for manufacture of MS pipes; that the other raw materials like cement, sand and other sample materials like electrodes, wire and flux are purchased by the Appellants; that MS pipes are received in almost cut to size conditions and hence no major cutting is required for manufacture of the pipes; that plates are bent of Bending Machine in a circular shap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act and proposed to impose penalty under Section 11AC of the Act. The Appellants filed a detailed reply to the above Show Cause Notice. 2.7 The Appellants were also issued with another Show Cause Notice dated 01/02.12.2010 proposing to demand duty of ₹ 4,88,57,143/- on clearance of 12072.623 RMT of pipes under Section 11A of the Act; proposed interest under Section 11AB of the Act and proposed penalty under Rule 25 of Central Excise Rules 2002. The department issued this show cause notice on the same set of allegations as contained in the Show Cause Notice dated 11.05.2010. This show cause notice is for the period from 13.11.2009 to 31.10.2010 in respect of 12072.623 R.Mtrs. of pipes cleared. 2.8 The Ld. Commissioner passed the Order-in-Original dated 25.11.2011 confirming the demand of ₹ 7,10,38,280/- and imposed penalty of ₹ 7,10,38,280/- apart from levying interest on the ground that the certificate required under the Sl.No.7 of the Notification No.6/2006-CE dated 1.3.2006 was not obtained by the Appellants before starting of the production or at least before clearance of final products without payment of duty. Being aggrieved with the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2006, it only requires that the certificate issued by the Collector/District Magistrate/Development Commissioner in which the plant is located is required to be submitted to the jurisdictional excise authorities to the effect that such goods are cleared for the intended use specified in column No. 3 of the table i.e. pipes of dimension exceeding 10 cm are integral part of the water supply projects. There is no such condition under the Notification that such certificates have to be produced before the clearance of the goods and/or it should be in the name of the manufacturer, the exemption is with reference to goods. Therefore, reading any other condition in the notification is not permissible. Reliance is placed on the ruling of the Hon'ble Apex Court in the case of Commissioner of Central Excise Vs. Mahaan Dairies - 2004 (166) ELT 23 (SC), wherein it was held that adding of words to a notification is not permissible. The reliance by the Commissioner on the same decision for drawing the adverse reference is misplaced and misconceived. 3.4 The appellant also draws attention to copy of the work order issued by Nagpur Municipal Corporation which is addressed to the said Joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We further hold that no excise duty is chargeable in the facts and circumstances of the case under the provisions of Notification No. 6/2006-CE on MS Pipes etc. cleared to Nagpur Municipal Corporation for water supply scheme, Pune-IV from it sources to the plant and from there to start point and also satisfied the other condition being pipes of outer diameter exceeding 10 cm when such pipes are integral part of the water supply project stipulated at Sr. No.1 of the Notification is satisfied. Further, the appellant satisfied the condition No. 4 of the said Notification which requires for production of a certificate issued by Collector/District Magistrate/Development Commissioner of the District in which the plant is located, is produced to the Dy. Commissioner / Addl. Commissioner of Central Excise, having the jurisdiction, to the effect that such goods are cleared for the intended use specified in column No. 3 of the table. We further hold that such certificates have to be issued only post supply made by the District authority, as the said condition requires certificate to the effect that such goods are cleared for the intended use . Thus, we also hold that the Commissioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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