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TMI Blog2019 (12) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ects against International Competitive Biddings and the said facts have duly been recorded in the impugned order and there is no dispute on the said facts. The notifications under which exemptions have been claimed by appellants are subject to condition that the said goods, when imported into India, are exempted from payment of customs duty. In the instant case, since the goods have been supplied for setting up of Mega Power Projects, we find that the learned Commissioner in his adjudication order has not negated the submissions made by the appellant regarding the availability of the exemptions from customs duty. Had the said goods been imported from outside India, the same would have been eligible for exemption as projects import as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V. SUBBA RAO, MEMBER(TECHNICAL) Shri N.K. Chowdhury, Advocate for the Appellant (s) Shri S. Mukhopadhyay, Authorized Representative for the Respondent (s) ORDER P.K. CHOUDHARY : The present appeal has been filed by the assessee, M/s. Industrial Performation (India) Pvt. Ltd., against demand of central excise duty of ₹ 3,16,27,292/- alongwith equivalent penalty and applicable interest confirmed by the learned Commissioner of Central Excise, Kolkata III, ex-parte vide Order-in-Original dated 23.06.2016 which is under challenge in this appeal pertaining to the period 27.09.2010 to 30.09.2015. 2. Briefly stated the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed as support for laying the cable that is structures cannot be treated as machines, spare parts or raw materials to be used in making such goods of chapter 84. It is also the observation of the learned Commissioner that the exemption provided under chapter 9801 cannot be made applicable to the goods failing under chapter heading 73 as have been claimed by the appellant under the excise notification nos. 6/2006 and 12/2012. 3. Sri N K Chowdhury, learned Advocate, appeared for the appellant and Shri S.Mukhopadhyay, learned Authorized Representative appeared for the Revenue. 4. The learned Advocate submitted that the issue has already been decided in their favour by the Tribunal in case of Sarita Steels Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Ld. Commissioner, Shri S.Mukhopadhyay, learned Authorized Representative for the Revenue submitted that the appellant is not entitled to exemption and accordingly prayed that the appeal be rejected. 6. Heard both sides and perused the appeal records. 7. We find that the goods have been cleared by the appellants to the specified Mega Power Projects against International Competitive Biddings and the said facts have duly been recorded in the impugned order and there is no dispute on the said facts. The notifications under which exemptions have been claimed by appellants are subject to condition that the said goods, when imported into India, are exempted from payment of customs duty. In the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion are classifiable under Chapter 85 of the Tariff. Under Central Excise Tariff there is no Heading 98.01 which exists in Customs Tariff only. Since the goods manufactured in India cannot be classified under Heading 98.01 of the Central Excise Tariff, denial of the exemption on the ground of non-fulfilment of condition of Project Import Regulation is not sustainable particularly when Condition No. 86 of the Notification No. 21/2002, dated 1-3- 2002 is fulfilled by them. Similar submissions were made by Revenue for denying the benefit of Notification 6/2006-C.E., dated 1-3-2006 on the ground of non-fulfilment of conditions of the Project Import Regulation in case of Sarita Steels and Industries Ltd. reported in 2011 (264) E.L.T. 313 and Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner has also noted that goods must be unconditionally exempted under Notification No. 21/2002-Cus (Project Imports) when imported into India. We are of the view that the learned Commissioner has attempted to examine the fulfillment of a condition which is not appearing in the subject Excise Exemption Notifications. We observed that the only condition is that goods are cleared under International Competitive Bidding for use in the specified Mega Power Projects which are exempted from customs duty. The supply of subject goods in the instant case for Mega Power Project under International Competitive Bidding is on record and not in dispute. Moreover, since the case of the appellant has already been settled by the co-ordinate Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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