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TMI Blog2014 (10) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... terchangeably. The guidelines and the forms filed as per requirement of Ministry of New and Renewable Energy nowhere equate the two terms; in fact the Application form at Serial No. 1 (f) of the Ministry's format referred to by Ld. Counsel only refers to ‘Forged Steel Rings for manufacture of special bearings for use in wind operated electricity generators'. It does not refer to tower doors or foundation rings which are completely different items. It is our considered view that the doors, anchor rings and LSP do not fall under the phrase ‘wind operated electricity generator'. The appellants have relied on the judgement of Pushpam Forging [2005 (7) TMI 242 - CESTAT, MUMBAI] which allowed exemption to flanges used in towers and against which order the civil appeal filed by the Department was dismissed by Hon'ble Supreme Court on 20.1.2006. But this decision was not on merits. On the other hand, we find that in the case of Uniflex Cables Ltd. vs. Commissioner [2011 (8) TMI 63 - SUPREME COURT OF INDIA] which is a later decision pronounced in 2011, the Supreme Court referring to the case of Nicco Corporation [2006 (3) TMI 48 - SUPREME COURT OF INDIA] held that the electric cables can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case are mentioned below. The notifications which are relevant in this case during different periods may be seen. The notifications No. 205/1988, No. 5/2005, No. 6/2006 and notification No. 12/2012 exempted certain goods specified in the table attached to the notifications. The relevant abstract of the table to the notifications are reproduced below for convenience (a) Notification No. 205/1988-CE dated 25 May 1988 Exemption to certain specified goods connected with solar and other natural energy The Table Sr.No. Description of Goods 12. Wind mills and any specially designed devices which run on wind mills (b) Notification No. 6/2002-CE. dated 01.03.2002 Table S. No. Chapter or heading no. or sub-heading no. Description of goods Rate under The First Schedule Rate under The Second Schedule Condition No. 237. Any Chapter Non-conventional energy devices/systems specified in List-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry can by no stretch of imagination include the whole WOEG system/windmill including the tower and foundations parts thereof. As the anchor ring and load spreading plates are used in the foundation of wind mill tower, they cannot be said to be components of WOEG. According to the Commissioner, WOEG is not the entire wind mill system but is only one of the parts of the Wind Mill system. On the issue of limitation, the Commissioner held that the monthly E.R. 1 returns submitted by Rakhoh do not reveal the exact type and nature of goods manufactured and cleared for availing the exemption. In most of the returns the description of goods is mentioned as Other Articles of Iron Steel . In some returns, the benefit of Notification No. 6/2006 is not claimed. In the returns for the period April 2008 to Jan. 2013, the benefit of Notification No. 12/2012 is not claimed. Therefore, there is suppression of facts. He relied on CESTAT decision in the case of Mahindra Sona Ltd. Vs. CCE Nashik - 2012-TIOL-783-CESTAT-MUM. He justified imposition of penalty relying on the following judgments. (i) Malaysian Airlines Vs. UOI - 2010 (262) ELT 192 (Bom.) (ii) UOI Vs. Dharmendra Textile Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerator uses rotational energy of the shaft to generate electricity using electromagnetism principle. 5.1 It will not be necessary here to go into further details of the functioning of the system. It would suffice to know that the nacelle on which the rotor blades are fixed and which also contains the shafts etc. rests on the tower which may be as high as 40 to 80 mtrs. For the tower construction, generally a tubular construction of concrete or steel is used. The tower carries the weight of the nacelle and the rotor blades and the loads caused by the power of wind. It was further explained by the Ld. Counsel that the components of foundation embedment comprise of anchor rings, load spreading plates (LSP), anchor bolts and levelling screws. This foundation transfers the load coming from the nacelle, shaft, tower etc to the surrounding concrete. The LSP couples the tower base with the foundation by means of anchor bolts. The anchor bolts are the parts which hold the tower base and extend into the civil foundation. The anchor rings are applied at the other end of the bolts in the foundation of the tower and are embedded in the concrete foundation to provide a firm base to the WOEG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ini Instratech Pvt. Ltd. - 2013-TIOL-738-CESTAT-MUM. which allowed exemption to doors fitted in the tower. He further referred to case of Bharat Heavy Electricals Ltd. Vs. Collector of Customs Chennai reported in 1999 (108) ELT 448 (Tri.) and Hyundai Unitech Transmission Ltd. Vs. CCE, Nagpur reported in 2005 (187) ELT 312 (Tri.-Mum.) And the case of Pushpam Forgings Vs. Commissioner of Central Excise Raigad 2006 (193) ELT 334 (Tri.-Mum.) wherein the Tribunal held that once the tower is held to be part of WOEG and exempted, MS flanges which are part of tower will also be entitled for exemption. 5.4 The Ld. Counsel referred to the clarification of Board vide F.No. 524/2/97-Cus (TU) dt. 5.8.97 stating that tower constitutes an essential component of WOEG and in the absence of tower, parts imported for the manufacture of WOEG cannot be said to be presented in unassembled/disassembled condition. Lastly, the Counsel explained that the parts in question are not parts of general nature as held by the adjudication authority. 5.5 On time bar it was stated that the Tariff classification of the products being cleared under exemption, along with the name of the product and particular n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Enercon India in support of his stand. 8. We have carefully considered the submissions of both sides. 9. The short point to be decided is whether the LSP and anchor rings, and tower doors can be considered to be covered under wind operated electricity generator, its components and parts' which are exempted under Notification No. 6/2006 We may refer to the term wind operated electricity generator' as WOEG. The notifications No. 6/2006 and 12/2012 exempt non-conventional energy devices/systems specified in List-5/8 of the notfs. respectively. The corresponding goods specified in List-5/8 are wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller , It would be relevant to mention that the earlier notifications namely 6/2002, 3/2001, 6/2000 described the goods were exempted in lists under the respective notification as wind operated electricity generator its components and parts thereof. However, under Notification 6/2006, the exemption became available to wind operated electricity generator its components and parts thereof, including rotor and wind turbine controller . Thus, it is clear that it was the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g exemption to foundation parts namely anchor rings and LSP has been shown to us. And here we would like to distinguish one fact which has not been appreciated by the appellants Rakhoh. Even if tower is considered to be part of the WOEG, which we don't agree with, we fail to understand how a foundation can be considered as part of the wind operated electricity generator. This is because the foundation includes steel items in concrete embedded in the ground. If appellants' view is accepted, then every foundation e.g. foundation made for a D.G. Set would also be considered as part of the D.G. Set, which is not so. Or, for that matter, if we consider the electricity generating machinery in a thermal plant or a hydro electric plant, then the whole plants would be considered as generators which would be a fallacious view. 12. We are of the view that in case the intention of Govt. was to exempt towers and foundation and its parts, then the notification would have specifically exempted non-conventional energy systems/devices as a whole. Rather, the notification exempts only those non-conventional energy devices/systems which are specified in List-5. And list-5 mentions only win ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the appeal within 3 months from the date the appellant makes pre-deposit of aggregate 25% of the total duty amount.................................... 13. Ld. Counsels have not been able to satisfy us that the terms wind mill (which includes tower and foundation) and wind operator electricity generator are synonymous or used interchangeably. The guidelines and the forms filed as per requirement of Ministry of New and Renewable Energy nowhere equate the two terms; in fact the Application form at Serial No. 1 (f) of the Ministry's format referred to by Ld. Counsel only refers to Forged Steel Rings for manufacture of special bearings for use in wind operated electricity generators'. It does not refer to tower doors or foundation rings which are completely different items. It is our considered view that the doors, anchor rings and LSP do not fall under the phrase wind operated electricity generator'. 14. We have seen the Board letter of 1997. But we find that during that period, the exemption was covered by notification 205/1998 dt. 25.5.1988 which at serial No. 12 of the table to the notification granted exemption to wind mills and any specially designed devic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnically the generator can run without the tower door. This would hold even if doors are specifically designed for wind mill towers. 15.2 The appellants have relied on the judgement of Pushpam Forging (Supra) which allowed exemption to flanges used in towers and against which order the civil appeal filed by the Department was dismissed by Hon'ble Supreme Court on 20.1.2006. But this decision was not on merits. On the other hand, we find that in the case of Uniflex Cables Ltd. vs. Commissioner (supra) which is a later decision pronounced in 2011, the Supreme Court referring to the case of Nicco Corporation (supra) held that the electric cables cannot be considered as parts of wind mills or any specifically designed devices. As regards the case of Bharat Heavy Electricals (supra), the case related to a period when the notification granted exemption to wind mills and their parts. That notification did not exempt WOEG and their parts and therefore is not applicable to the facts of the case before us. 16. We note that the appellants Rakhoh state that they had filed monthly E.R.1 returns and therefore extended period is not invokable. They relied on various judgments too. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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