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TMI Blog2017 (1) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... on N/N. 108/95 dated 28.08.95 or not? - Held that: - As all the conditions of the Notification have been satisfied by the appellants, therefore, the appellant is entitled for benefit of the above Notification. Merely, on the ground that the goods have been supplied to the contractor directly who has executed the project in question and after the implementation of the products the machine shall remain with the property of the contractor cannot be reasons to deny the benefit of notification - reliance placed in the case of Caterpillar India Pvt. Ltd. [2005 (3) TMI 243 - CESTAT, NEW DELHI] - benefit of notification allowed. Appeal allowed - decided in favor of appellant. - E/1063/2008 - A/61842/2016-EX[DB] - Dated:- 21-12-2016 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Sh. Ravinder Narain, Advocate- for the appellant Sh. Satyapal, AR- for the respondent ORDER Per Ashok Jindal The appellant is in appeal against the impugned order denying the benefit of Exemption Notification No. 108/95-CE dated 28/08/1995. 2. The facts of the case are that the appellant cleared 25 nos. of machines claiming the benefit of Exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the submissions made by both the sides, the following issue before us to decide the matter. (i) Whether in the facts and circumstances of the case, the Adjudicating Authority has gone beyond the scope of the show cause notice or not? (ii) Whether in the facts and circumstances of the case the appellant is entitled to avail benefit of Exemption Notification No. 108/95 dated 28.08.95 or not? Issue no. I: We have gone through the show cause notice, in the show cause notice the only allegation is that after the goods were used for completing the projects, can be further used by the contractors projects. The goods could only be used for project and not any other purpose. The possibility of others works ought to have been intimated by the manufacturer s supplier to the excise authority, therefore, the appellant is not entitled to benefit of said notification. In the impugned order, the adjudicating authority has observed as under: 13.4 In the instant case also, I find that the goods have not been supplied to the project and also the goods have not been paid for by the Project Authority. It is the contractors who have been supplied/sold the goods by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear. This explanation does not seek to modify the notification. And decide the case holding that the goods cleared are not supplied to the projects, therefore, the appellant is not entitled for benefit of Exemption of Notification No. 108/95. 8 As the issue before the Adjudicating Authority was that the goods after completion of the projects remained with contractors but the Adjudicating Authority has held that the goods were not supplied to the projects, therefore, we hold that the adjudication authority has gone beyond the show cuase notice, therefore, in the light of the decision in the case of Caprihans India Ltd. (Supra). The impugned order is not sustainable in the eyes of law wherein this Hon ble Apex Court observed as under: 6. The findings in these paragraphs by the Tribunal have to be set aside on the simple ground that they are beyond the show cause notice of the Revenue, which accepts the fact that at least in the present case, no new product emerges after printing and consequently, therefore, that cannot be said to be any manufacture. On this ground alone, we asset aside the Tribunal s judgment and restore that of the Commissioner, making it clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Organisation and approved by the Government of India. Admittedly, in the case in hand, the projects have been financed by the International Organisation i.e. Asian Development Bank and the same have been approved by the Government of India. It is also a fact on record, the appellant has produced necessary certificate from the Project Implementing Authority to avail benefit of Exemption Notification. As all the conditions of the Notification have been satisfied by the appellants, therefore, the appellant is entitled for benefit of the above Notification. Merely, on the ground that the goods have been supplied to the contractor directly who has executed the project in question and after the implementation of the products the machine shall remain with the property of the contractor cannot be reasons to deny the benefit of notification as held by this tribunal in the case of Caterpillar India Pvt. Ltd. (supra) wherein this Tribunal has observed as under: 3. It is not the case of the department that the goods have not been supplied to the projects financed by international organisations. The goods were supplied to various sub contractors for the Golden Quadrilateral Project fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the assessee s claim. Thus ultimately, as the machineries had been put in use by the sub contractors, who were given the job of execution the claim for exemption cannot be denied. The use of the phrase supplied to the projects financed by the said United Nations or an International Organisation and approved by the Government of India clearly shows that the condition for grant of exemption is supply of the goods towards the project and nothing beyond. The extract of the Notification No. 108/95-CE dated 28.08.1995 reads as follows:- In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise and Salt Act, 1944, ( 1 of 1944) read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of special importance) Act, 1957 (58 of 1957), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all goods falling under the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said goods) when supplied to the United Nations or an international organisation for their official use or supplied to the projects financed by the said United Nations or an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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