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TMI Blog2017 (3) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... India, Ministry of Petroleum and Natural Gases, the adjudicating authority coming to the conclusion that the project imports facility cannot be extended to the appellant is totally incorrect finding - appeal allowed - decided in favor of appellant. - C/591/06-Mum - A/86329/17/CB - Dated:- 10-3-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri J.H. Motwani with Ms. Nehal Parekh, Advocates, for appellant Shri A.B. Kulgod, Assistant Commissioner (AR), for respondent ORDER Per M. V. Ravindran This appeal is directed against order-in-original No. 18/2006/CAC/CC(I)/AKP dated 31.1.2006. 2. When the matter was called out, appellant's counsel sought a pass-over, but the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities issued show cause notice to appellant asking to show cause as to why the provisional registration of the contract should not be finalized by assessing the goods imported vide the above bills of entry, as consumables on merits and not as capital goods. Appellant contested the issue on merits before the lower authorities. The adjudicating authority, after following due process of law, confirmed the demand of differential duty and also imposed penalties and confiscated the goods holding them as liable for confiscation with an option to redeem the same on payment of redemption fine. 4. It is the case of the appellant that the benefit of Notification 160/95 is applicable directly to all projects entered for Mumbai-Manmad pipeline pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the Central Government of India has issued Notification No.160/95 for Mumbai-Manmad pipeline project to be considered for project imports. For the said project, BPCL was the implementing authority who awarded the contract to the appellant following requisite procedures. BPCL themselves imported pipes for such project and handed over the same to appellant for laying the same in designated area; appellant imported other materials required for laying the said pipeline project. It is the finding of the adjudicating authority that every project is an independent standalone project contract which must satisfy all conditions of Heading 98.01 and in the case in hand, having not satisfied so, the differential duty needs to be confirmed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very same notification is in dispute in this case and Their Lordships in paragraphs 9 and 10 held as under:- 9. Firstly, on the facts we find that the assessee had given to the sponsoring Ministry its entire Project Report. In that report they had indicated that for the expansion of the fertilizer project they needed an extra item of capital goods, namely, 6MW Captive Power Plant. In their application, the assessee had made it clear that the fertilizer project was dependant on continuous flow of electricity, which could be provided by such Captive Power Plant. Therefore, it was not open to the Revenue to reject the assessee's case for nil rate of duty on the said item, particularly when the certificate says so. In the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ministry with regard to the list of items appended to the certificate. According to the Department, the said list has not been countersigned by the competent authority in the sponsoring Ministry. We do not find any merit in the said contention. The list consists of 14 items. The Department has accepted 13 out of 14 items as capital goods required for the fertilizer project, therefore, it cannot be said that the sponsoring Ministry had not applied its mind to the list appended to the essentiality certificate. This point needs further clarification. The power plant in the conceptual sense or in the technical sense is certainly different from the fertilizer plant. However, when we come to Heading 98.01 of the Customs Tariff Act, 1975, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality Certificate is produced, it should be treated as proof of fact that importers have fulfilled the conditions enabling them to obtain the benefit under exemption notification. Their Lordships were considering the similar issue but in respect of the certificate issued by Director General of Hydrocarbons. In paragraphs 35 and 36, their Lordships held as under:- 35. The essentiality certificate, thus, must be treated to be a proof of the fact that the importers have fulfilled the conditions enabling them to obtain the benefit under the exemption notification. 36. The principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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