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TMI Blog2019 (11) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... g public sector undertaking engaged in the business of generation, transmission and distribution of electricity and is not a profit making agency. To solve the shortage of energy, the appellant started low sulphur heavy stock (LSHS) based power plants. In tune with that policy they had allowed M/s. Kasargod Power Corporation Ltd. (KPCL, for short) to start a thermal power project using LSHS as fuel. All these thermal plants were envisaged at a time when the price of Naphtha & LSHS was reasonable and then price of the same were exorbitantly increased. In these circumstances, the Government of India vide Notification No.6/2002-CE dt. 01/03/2002 as amended exempted Naphtha and LSHS from excise duty subject to the fulfillment of two conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No.6/2003 dt. 01/03/2003 and paid duty on purchase of LSHS (even though no duty paying documents have been produced) and they are not eligible for the exemption up to 08/07/2003, the date of fulfilling finally the conditions stipulated in the aforesaid notification, and since KPCL is not eligible for exemption for the period, the question of refund does not arise and hence the KSEB, the purchaser of power from KPCL is also not eligible for refund as claimed by them. aggrieved by the Order-in- Original, appellant filed appeal before the Commissioner(Appeals) who rejected the said appeal. Hence the present appeal. 3. Heard both sides and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Section 44 of Indian Electricity Act, 1948 is still valid as the same was issued on 14/06/1995 by KSEB. The said clarification regarding the same was forwarded to the Department on 24/04/2003 and further on 09/05/2003. Except for this clarification, there is no dispute that the benefit of exemption sought by KPCL had satisfied all the conditions of Notification No.6/2003. The enquiry was only a procedural matter and subsequently the lower authority issued a letter on 04/06/2003 issuing the certificate that the KPCL is eligible for the benefit of exemption under Notification No.6/2003 but they are not eligible for exemption during the period 01/03/2003 to 31/07/2003. He further submitted that Commissioner(Appeals) has failed to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No.06/2003 dt. 01/03/2003. He further submitted that it is a settled law that substantial benefit should not denied for mere procedural infractions. He further submitted that the Commissioner(Appeals) has not given any finding on the various decisions relied upon by the KPCL. He further submitted that both the authorities have failed to note that procedures are meant for furthering justice and not hampering justice and it is not the letter that is important but the spirit behind it as held by the Hon'ble Tribunal in the case of Chemi Equip ltd. [1984(18) ELT 145]. In fact, the Hon'ble Tribunal in this case has held that even not following Chapter X procedure should not be a ground to deny the benefit of Notification. He also relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. For this submission, he relied upon the decision in the case of Grasim industries [1990(28) ECC 336]. He further submitted that the appellant is entitled to the refund of excise duty reimbursed by them to KPCL because there was a Power Purchase Agreement signed between KPCl and KSEB. As per Article 7.3(ii) of the Agreement, the excise duty, tax etc. payable on fuel has to be reimbursed by KSEB and the KSEB has reimbursed the duty amounting to Rs. 2,65,66,787/- to KPCL towards excise duty remitted for period 01/03/2003 to 31/07/2003. He further submitted that sufficient documentary evidence by way of balance sheet had been produced to prove that the amount claimed as advance was shown as a loan returnable by KPCL and various other docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of the notification. Further we find that once the clarification was given by KPCL and finally edibility certificate was issued, the said certificate relates to the date of application i.e. 04/03/2003 filed by KPCL. The contention of the Revenue that KPCL is entitled to the exemption notification from 08/07/2003 is not tenable in law. Further we find that the Commissioner(Appeals) has not considered the legal submissions submitted by the appellant whereas the original authority has relied upon certain decisions but the said decisions are distinguishable inasmuch as the ratio of those decisions was as to how the notification has to be interpreted. But whereas in the present case, eligibility to benefit of the notification is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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