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TMI Blog2023 (9) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, vide Notification No.21/2002-Cus as amended by Notification No.49/2009-Cus - appellant was not a party to the International Bidding and as a sub-contractor of the BHEL. Project in question is not a 1000MW project - HELD THAT:- Joint Secretary, Ministry of Power, Government of India, vide certificate dated 16-12-2009, certified that it is a case of setting up of Power plant of Capacity of 1000 MW. This should put to rest the speculation that the impugned project is of capacity of 1000 MW and not two projects of 500 MW each - CBEC vide F. No. 354/2007/2011-TRU dated 06.07.2012 has clarified that: FM s approval has been obtained for the issuance of suitable instructions to the Central Excise authorities based on clarification recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revious and subsequent periods, it is not open for the Department to deny refund, if otherwise in order, for the short period during which the appellants have paid duty under mistaken notion of law.The Ld. Counsel also submits that the appellants are, alternatively eligible for exemption under Notification No.20/2002 as the goods were supplied to power projects. The impugned order is not sustainable and is liable to be set aside - Appeal allowed. - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Vivek Kumar, Advocate for the Appellant Shri Ravinder Jangu, Authorised Representative for the Respondent ORDER M/s Souvenior Ceramics, the appellants, are manufacturers of castable ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has clarified that the Mega/Ultra Mega power projects wherein the capacities of number of units total up to at least 100 MW in one go are eligible to get the requisite benefits under mega status certificates . Learned Counsel further argues that learned Appellate Authority held that exemption contained under Notification No.21/2002-Cus dated 01.03.2002 was not applicable, whereas the refund was claimed in terms of Central Excise Notification; learned commissioner misread the refund to be of terminal excise duty. 3. Shri Ravinder Jangu, learned Authorized Representative for the Department, reiterates the findings of OIA and OIO. 4. Heard both sides and perused the records of the case. We find that Notification No.06/2006 at Sl. No.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be inclusive of Excise Duty plus 2% of CST and therefore, it cannot be claimed that the appellants have not collected the duty paid from their Customers. The appellate authority holds that the name of the project itself is Bhusawal Expansion Power Plant and hence, exemption available for installation of project cannot be extended; as per Notification No 21/2002-Cus as amended by Notification No.49/2009-Cus prescribes Customs Duty @2.5% and therefore, Condition No.19 of the Notification No.06/2006 is not satisfied. 7. Regarding the allegation that the Project in question is not a 1000MW project, we find that Joint Secretary, Ministry of Power, Government of India, vide certificate dated 16-12-2009, certified that it is a case of set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered the submissions. We notice that this very issue was the subject matter in assessee s own case and this Bench by final order No. 636-637/07, dated 6-6-2007 [2007 (217) E.L.T. 513 (T)] decided the matter in assessee s favour. The finding recorded in para 6 are reproduced herein below : 6. The learned Advocate brought to our notice the relevant conditions of the exemption Notification. In terms of Notification No. 48/2004, against Sl. No. 301, all goods supplied against International Competitive Bidding, falling under any Chapter are exempted subject to condition 64 of the Notification. Condition 64 reads as follows :- 64. the goods are exempted from the duties of customs leviable under the First Schedule to the Customs Tarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EL, who are the bidders of International Competitive Bidding, the condition of the Notification is satisfied and there is no justification for denying the exemption notification to the appellant. The Tribunal, in the case of Automatic Electric Ltd. v. CCE, Mumbai - 2004 (178) E.L.T. 524 (Tri.-Mumbai), has held that the benefit of exemption under Notification 108/95-C.E. is available to a sub-contractor when M/s. BHEL is the main contractor of an approved project. The fact that there was a contract between the main contractor and the subcontractor will ensure that supplies made eventually reach the project site. The ratio of the above case is clearly applicable to the present case. In these circumstances, we set aside the impugned order and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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