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TMI Blog2019 (11) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... gh initially presented as three, for refund of duties of central excise discharged by Deputy Executive Engineer (Civil), Maharashtra State Electricity Distribution Co Ltd, Murud arising from ex post facto claim of eligibility for exemption afforded by notification no. 74/1993-CE dated 28th February 1993 which was intended for goods manufactured in a factory belonging to the government of any state of the Indian Union for use by any department of the said government. It would appear that the Assistant Commissioner of Central Excise, Nanded, vide a purported 'order-in-original no. 27/2006 dated 22nd February 2007, pronounced the assessee herein as qualified to benefit from the exemption following which refund claims for Rs. 38,40,095, paid be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of consequential relief by the two lower authorities and the interest allowed by the first appellate authority comprise the three appeals of Revenue before us. The assessee has filed a cross-objection against the appeal of Revenue challenging the grant of consequential relief. 3. The assessee had also filed an appeal against the upholding of the rejection of their claim for Rs. 67,86,348 by the first appellate authority which had been dealt with earlier by the Tribunal without going into the merits of the sanction and vide final order no. A/86549/2019 dated 9th May 2019, indicating disinclination to accept the contention of the assessee that the bar of limitation was inoperable for the earlier period also. This accounts for three of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (Tri-LB) which is subsequent to OIO no.27/2006 dated 22.02.2007. is applicable in this case and therefore the exemption under said Notification is not applicable to them for the reasons that their factory is not belonging to State Government and poles are used by themselves. I also find that while passing the earlier order in respect of Deputy Executive Engineer, PSC Pole factory, Murud, Latur, the CESTAT (Larger Bench) decision supra was not brought before the undersigned by the appellant or by the respondent. Therefore, it was not considered. Therefore, the appellant is not entitled for exemption under Notification no.74/93 dated 28.02.1993 resulting in denial of refund claim. Therefore, 1 do not interfere with the OIO dated 22.11.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the period thereafter, which is now before us, will have to be decided in the context in which the claim was accepted. Doubtlessly, the first appellate authority was bereft of the law decided by the Larger Bench of the Tribunal in re Assistant Engineer (Civil) holding that '7. The State Government - which functions through various Departments created under the Rules of Executive Business - is a consumer of electricity like any ordinary consumer and it is totally incorrect to suggest that the PCC poles are 'used' by a consumer. The Electricity Board as the 'licensee' under the Electricity (Supply) Act generates electricity which is transmitted, distributed and supplied by its agencies and for such supply it charges the consumer. In other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment, the benefit of exemption has to be denied, for, as seen above, the goods not only should be used by Departments of the concerned State Government, it should also be the manufactured in the factory belonging to a State Government. The status of the Electricity Board being different from the State Government about -which there is no dispute - the exemption has to be rejected on that ground alone. We are thus satisfied that the conditions are not fulfilled by the appellant Board and, therefore, it is not entitled to exemption under the notification as held by the Allahabad High Court in U.P. State Electricity Board (supra) and Executive Engineer, Irrigation Department (supra). The decision in Electricity Poles Manufacturing (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not any Department of the State Government, the other condition is also not fulfilled. 11. In the result, the reference is answered in the negative and against the appellant. It is held that Chhattisgarh State Electricity Board is not a Department of the State Government so as to be eligible for exemption in respect of goods i.e PCC Poles manufactured in their factories.' which negates the presumption that the clarificatory 'order-in-original' had attained finality and that the dispute before him lay within the narrow compass of limitation. The appeal of Revenue against the modification of rejection by the original authority in the order impugned before us does merit attention for that very reason. However, the conformity thereof shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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