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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 ..... to the appellant to deny the benefit of Exemption Notification No. 108/95. Consequently, to demand duty along with interest and to impose penalty on the appellant. The matter was adjudicated wherein the adjudicating authority held that as the goods have not been supplied to the Project Implementing Authority but to the contractors only, therefore, the appellant is not entitled for benefit of Exemption Notification No. 108/95. Consequently, the demand of duty was confirmed along with interest and equivalent amount of penalty was also imposed. Aggrieved from the said order, the appellant is before us. 3. The ld. Counsel for the appellant appearing before us submits that the impugned order is beyond the allegation in the show cause notice, therefore, the same is to be set aside on this ground. To support this contention, he relied on the decision of the Hon'ble Supreme Court in the case Caprihans India Ltd reported in 2015 (325) ELT 632 (SC). 4. On merits, he submits that the issue is squarely covered by the decision of this Tribunal in the case of Caterpillar India Pvt. Ltd. reported in 2005 (185) ELT 430 (Tri.Del.) which has been affirmed by the Hon'ble High Court of Madras report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods are required for the execution of the project shall be construed accordingly." This clarification makes it clear that the goods supplied to projects are not to be withdrawn from the projects. This benefit is available where the contractor initially purchases the goods but ultimately supply these goods to the projects. However, if the exempted goods are not the property of the projects and are diverted later on by the supplier or the contractor, the benefit is not available. 13.6 The notice in their defence have referred to the explanation to Notification No. 108/95-CE introduced in Budget, 2008 and have contested that the equipments have not been withdrawn from the project till the completion of the project. I find that explanation nowhere limit that withdrawal of "goods during the execution of the project. If the goods are withdrawn at any stage by the contractor from the project, the exemption is not available. Here I note that the explanation introduced in Budget, 2008 only clarifies the position with regard to the scope of the phrase goods are required for the execution of the project . In case the property/ownership of such equipments lies with the project, then ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 International organisation and approved by the Government of India, from the whole of- (i) The duty of excise leviable thereon under section 3 of the Central Excises and Salt Act, 1944 (1 of 1944); and (ii) The additional duty of excise leviable thereon under sub-section (1) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957): Provided that before clearance of the said goods, the manufacturer produces before the Assistant Commissioner of Central Excise having jurisdiction over his factory, a certificate from the United Nations or an International Organisation that the said goods are intended for official use by the said United Nations or the said International Organisation or are to be supplied to a project financed by the said United Nations or the said international organisation and the said project has duly been approved by the Government of India. Explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in Toyo Engineering India Ltd. V. CC, Mumbai- 2000 (122) ELT 315 in which it has been held that the mere fact that the construction machinery used in the initial setting up of the specified plant could possibly be used subsequently elsewhere in the setting up of another plant will not debar the importer from the facility of project import. There is also no evidence in the present case that the goods in question were used in any other project after the implementiation of the Golden Quadrilateral Project. There is also no requirement under the Notification that the entire cost shall be borne by the International Organisation, as held by the Tribunal in Nestor Pharmaceuticals Ltd. V. CCE, Delhi-2000 (116) ELT 477. Which has been affirmed by the Hon'ble Madras High Court has observed as under: 6. considering that the goods had admittedly been used in the project and after the completion of the projects, the goods supplied to the various sub contractors were entrusted to retain the goods supplied could not stand in the way of granting, the exemption under the Notification. 8. We do not find any justifiable ground to interfere with the order of the Cestat based on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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