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TMI Blog2023 (3) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... such, were entitled to the benefit of Notification 6/2000. Thus the appellant is eligible for the benefit of exemption as per the Notification No.6/2006-C.E. - appeal allowed. - Customs Appeal No.40257 of 2013 - FINAL ORDER NO. 40175/2023 - Dated:- 17-3-2023 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Ms. Shobana Krishnan, Advocate for the Appellant Mr. S. Balakumar, Asst. Commissioner (A.R) for the Respondent ORDER 1. The issue that arises for analysis in this appeal is whether the imported goods (Tubular Tower) are parts of the Wind Operated Electricity Generator and eligible for benefit of exemption under Notification No.06/2006-CE (Sl. No.84). 2. The learned counsel Ms. Shobana Krishnan appeared and argued for the appellant. It is submitted that the appellant is engaged in the business of Wind Power Generation and manufacturing of Wind Operated Electricity Generator (WOEG). They imported various components of wind power generation unit, including towers. The details of the tower imports are as under: Details of Imports of Towers Effected By M/s RRB Energy Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponents of WOGE and is eligible for exemption. The learned counsel prayed that the appeal may be allowed. 5. The learned Authorized Representative S. Balakumar supported the finding in the impugned order. The learned Authorized Representative relied upon the decision of the Tribunal in the case of G.B. Engineering Enterprises Pvt. Ltd. Vs. Commissioner of Central Excise, Trichy 2010 (251) ELT 298 (Tri. Chennai). 6. Heard both sides. 7. The learned counsel for the appellant has submitted that as the benefit of Notification No.6/2006 is available for goods described as non-conventional energy devices/systems specified in list 5 falling under any chapter, the alleged classification under Chapter 7308 is of no consequence. As per list 5 wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller are eligible for exemption. The issue as to whether towers form part of WOEG was considered by the Tribunal in the case of Hyundai Unitech Electrical Transmission Ltd. Vs. Commissioner of Central Excise Nagpur 2005 (187) ELT 312 (Tri. Mumbai). 2. As per the facts on records, the appellants were manufacturing Tower and Lattice M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Advocate appearing for the appellants and Shri Ajay Saxena, ld. SDR for the Revenue. 5. We have considered the submissions made by both sides. The main issue required to be decided is as to whether the parts of Tower and Lattice Masts with accessories stubs and cleats are entitled to exemption under the provisions of Notification 6/2000 . Admittedly, Serial No. 265 of Notification No.5/99, dated 28-2-99 read with Serial No. 13 of List No.4 appended to the said Notification granted exemption to Wind Mill and parts thereof. The question required to be decided is as to whether the tower material manufactured by the appellants can considered to be a part of wind operated electricity generator. We note that while considering the said issue, the Commissioner has taken into account, the definition of electric generator as appearing in various technical books and has held that the tower materials cannot be a part of electric generator. However, he seems to have mixed up that it is not simplicitor electric generator, which are specified in the notification but are wind operated electricity generator, their components and parts thereof . Admittedly, the tower material is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Supreme Court held that wires and cables are not entitled for the benefit of notification. The wordings of the notifications which are under consideration before us are different. The Notification No.3/2001-C.E. No. 6/2002-C.E. provides exemption from payment of Central Excise duty in respect of wind operated electricity generators and its components and parts thereof. As the benefit of notification is available to the components and parts thereof, which not in the case before the Hon ble Supreme Court in the case of Nicco Corporation Ltd. (supra). Therefore, ratio of the above decision is not applicable in the facts of the present case. 13. The Revenue is not denied the benefit of notification in respect of the tower of the wind operated electricity generators as held by the Commissioner of Central Excise, Raipur, vide order dated 28-02-2005 and the Commissioner (Appeals) vide order dated 10-2-2003 allowed the benefit of notification in question in respect of towers of wind operated electricity generators. The Revenue has not produced any evidence to show these orders are challenged by the Revenue. As the benefit of Notification No. 6/2002-C.E. is allowed to the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so relied upon the Circular No.1008/5/2015 CX, dated 20.10.2015 which was issued clarifying that tower, nacelle, rotor, wind turbine controller are eligible for exemption. The relevant paragraph of the Larger Bench decision is reads as under: 5.2 The learned AR argued that the anchor rings and load spreading plates are not parts of the tower and are parts of the foundation of the tower. He argued that Circular No. 1008/15/2015, dated 20-10-2015 covers only the following items : 2. Ministry of New and Renewable Energy had earlier clarified to CBEC on the subject that the following are parts of wind operated electricity generators : (i) Tower : which supports the nacelle and rotor assembly of a wind operated electricity generator. (ii) Nacelle : which consists of gear box, generator, yaw components, flexible couplings, brake hydraulics, brake calipers, sensors, nacelle plate, nacelle cover and other smaller components. (iii) Rotor consists of blades, hub, nosecone, main shaft, special bearings. (iv) Wind turbine controller, nacelle controller and control cables. He pointed out that the foundation is not covered as part of the wind o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d operated electricity generators and are eligible for exemption under Notification No. 6/2006, dated 1-3-2006. 11. The learned Authorized Representative has relied upon the decision in the case of G.B. Engineering Enterprises Pvt. Ltd. (supra). On perusal of the facts of the case, it is seen that the period of dispute in the said case are from September 1994 to January 1995, when the earlier Notification No.205/88 dated 25.05.1988 was applicable. Prior to 16.03.1995 the parts of wind mills were not covered under the notification. The facts being entirely different, the said decision is of no assistance to the Department. 12. After appreciating the facts and following the decision of the Apex Court as discussed above, we are of the considered opinion that the appellant is eligible for the benefit of exemption as per the Notification No.6/2006-C.E. 13. We make it clear that we have not considered the issue of classification in this appeal. The impugned order denying the exemption and demanding differential duty is set aside. The appeal is allowed with consequential relief, if any, as per law. (Pronounced in the open court on 17.03.2023) - - TaxTMI - TMITax - Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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