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TMI Blog2023 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the project and only held that demand against the appellant can be sustained only for one year period which is within the period of limitation - Hence considering the issue whether the appellant violated the condition of exemption notification by removing the goods before completion of the project cannot be considered beyond the scope of remand order. There are strong force in the submissions made by the appellant that the goods supplied during the relevant period by availing the exemption notification whether withdrawn from the project has to be examined and only if it is removed before completion of the project, the benefit of notification can be denied. Merely based on presumption that few of the hydraulic excavators procured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project, few are in the process of being withdrawn and others to be withdrawn once the project is completed. Based on the said show cause notice was issued on 08.05.2009 alleging that appellant have evaded Central Excise duty to the extent of Rs.11,70,90,398/-, education cess of Rs.23,41,808/- and secondary education cess of Rs.3,29,585/-. Appellant denied the allegations and specifically submitted that the procedure of supplying the goods to the contract or to the subcontractors for use in the execution of the projects is as per the certificate issued by the project implementing authority in the name of the manufacturers and mentioning the contractors or subcontractors has been in practice right from the year 1995 i.e. ever since the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2020. Only thereafter, matter was considered for de novo adjudication and the appellant submitted that even for one year, the exemption can be denied only if goods are removed outside the projects and not based on a probability that goods can be removed out of the project. However without giving any specific finding on said issue, adjudication authority vide impugned order confirmed the demand for one year. Aggrieved by said order, present appeal is filed. 3. When matter came up for hearing, Learned Counsel submits that they have not diverted the goods as alleged in the show cause notice and there is no evidence to substantiate said allegation. Learned Counsel draw our attention to letter issued by the office of the Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Appellate Tribunal. 5. Ld. Counsel also relied the final order in the matter of M/s Tata Motors Ltd. versus Commissioner of Central Excise Service Tax, Jamshedpur reported in 2023-VIL-871-CESTAT-KOL-CE and submits that only if goods removed before completion of the project, the benefit of notification can be denied. 6. Learned D.R. reiterated the findings in the impugned order and submits that entire issue was considered by this Tribunal and as per the Final Order No.20340/2016, it is confirmed that demand will sustain for one year and only for quantification of the demand of duty for one year, it was remanded. No evidence related to premature removal of goods can be considered in de-novo adjudication. Considering the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have not removed the goods before completion of the project and only held that demand against the appellant can be sustained only for one year period which is within the period of limitation . Further while dismissing the revenue appeal, Hon ble Supreme court also held that the Tribunal has observed that the demand against the respondent could be sustained for a period of one year prior to the issuance of the notice to show cause . Hence considering the issue whether the appellant violated the condition of exemption notification by removing the goods before completion of the project cannot be considered beyond the scope of remand order. 8. Further, I have gone through the notification no. 108/95 dated 28.08.1995 as amended. I find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tractor during the course of execution of the project. After the project is completed the contractor is well within his right to withdraw the capital goods and machinery used in execution of the project, since it does not form part of the structure of the project. The department wrongly interpreted the Explanation 2 to mean that only the goods which are consumed in the project are eligible for the exemption. If such a interpretation is accepted, then no capital goods will be eligible for the exemption, as the machinery or capital goods will not be get consumed in the project. Thus, the only plausible interpretation for the Explanation 2 would be that the goods brought into the project should not be withdrawn by the contractor during the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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