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TMI Blog2023 (12) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ministry of Power and that these two projects would have been entitled for exemption under Customs Notification No. 21/2002-CU (serial no. 400). The wordings in the certificate issued by the Ministry of Power clearly matches with the wordings at serial no. 400 of this Notification. Therefore, there is no specific requirement for signing of the Certificate by Chairman not of the PSU which is only in relation to the goods imported into India. In the case of goods procured domestically, the exemption is available as long as the supplies have been made against ICB and projects are meeting the criteria. In this case, the supplies have been made by the sub-contractor through contractor to the project duly recognised for entitlement of exemption from the customs duty also, in case they import goods for said project. Thus, there are sufficient documents on record to prove that the Appellants were not required to pay any duty and were clearly entitled for benefit of Notification No. 6/2006. No duty is leviable on clearances made to these two projects through the main contractor M/s BHEL - Since the duty is not leviable, the penalty is also not imposable on the Appellants - App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F NTPC LIMITED AND TNEB): i) Project Authority Certificate (PAC), vide Ref No. NTPC/BHEL/002 dated 28.02.2008 signed and issued by Shri A Radhakrishna, Cheif Executive Officer, Vallur Thermal Power Project (2 x 500 MW), NTPC, Tamilnadu Energy Company Limited (A Joint Venture of NTPC Limited and TNEB) wherein it is certified that M/s Bharat Heavy Electricals Limited, New Delhi have been awarded a contract for supply of certain goods, that the supply of the goods under the contract to be made to power project in India under the procedure of International Competitive Bidding in accordance with the provisions of paragraph 8.2(g) and 8.4.4 (iv) of the Foreign Trade Policy 2004-09. ii) Certificate No. 8/10/2006-State Thermal dated 10/11/2006 issued by Ministry of Power, wherein the Ministry accorded mega power status to the Thermal Power Plant (2 x 500 MW) being set up by NTPC Tamil Nadu Energy Company Limited (a joint Venture of NTPC and TNEB) iii) Certificate by the Main Contractor to the Sub Contractor, vide Ref:BHE/PSSR/Proj/BOP/ENN/Misc TANK, dated 14.12.2009 issued by Bharat Heavy Electrical Limited, wherein sub-contract for supply of materials valued at Rs. 67,50,191/- fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oject Authority Certificates, letter issued by the Ministry of Power regarding the status of MPP for these two projects and also certificates issued to them by BHEL as a sub-contractor to the main contractor i.e. BHEL for supply of goods. However, on perusal of the documents, it was observed by the Department that the Project Authority Certificates were not issued by the prescribed Authority i.e. Chairman and Managing Director of NTPC as required under Condition No. 86(b) of Serial No. 400 of Customs Notification No. 21/2002-Cus dated 01.03.2002. Therefore, it was felt that the Appellant failed to provide necessary certificate, duly signed by the Competent Authority, and accordingly a Show Cause Notice demanding duty of Rs. 8,88,913/- was issued to the Appellant along with proposal to impose penalty. 6. On adjudication, the entire demand was confirmed and equal penalty was also imposed under Rule 25 of Central Excise Rules, 2002. On appeal, the Commissioner (Appeals) upheld the Order except for reducing the penalty from Rs. 8,88,913/- to Rs. 1,50,000/-. 7. The Appellants are in appeal against the said Order of the Commissioner (Appeals). Learned Counsel on behalf of the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the case of Dilip Kumar Co., [2018 (361) ELT 577 (SC)] and as well as in a recent case of Krishi Upaj Mandi Samiti, New Mandi Yard, Alwar Vs Commissioner of Central Excise Service Tax, Alwar [2022 (2) TMI 1113 (SC)]. 9. Heard both the parties and perused the records. 10. The main issue to be decided is whether the Appellants were eligible for the exemption under Notification No. 6/2006-CE, dated 01.03.2006 or otherwise. It is an admitted fact that they have cleared the goods on instruction from M/s BHEL, who is a contractor who has been awarded the contract for certain work under ICB route by the Simhadri Super Thermal Power Project, Stage-II (2 x 500 MW) and NTPC Tamilnadu Energy Company Ltd., (a joint venture of NTPC Ltd., and TNEB). It is also an admitted fact that these two Power Projects have been duly granted necessary status as MPP by the Ministry of Power. It is also an admitted fact that the Appellants have submitted Project Authority Certificate issued to the main contractor by these projects as also letter from the Ministry of Power to MPS Simhadri Stage II Power Project (2 x 500 MW) by NTPC and TNEB in Tamil Nadu. They also submitted amendments made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption for project imports for Mega Power Projects, what is important to note is that as long as the project is entitled to import goods duty free, the same project is also entitled to procure similar goods domestically, if the supplier of the goods has got the contract through ICB route. In the instant case, it is not denied that M/s BHEL has won the contract under ICB from eligible Mega Power Projects for supply of goods, which in turn he has also part sub-contracted to the Appellant. It is also not disputed that the name of the sub-contractors can be included in the main contract awarded to the main contractor for supply against ICB to the designated mega power projects. In the instant case, even if such inclusion was done at a later date, it does not take away the merit that they were subcontractors supplying to or through the BHEL who was the main contractor having won the contract for designated Mega Power Project under ICB route. 15. Therefore, what is relevant to note is whether the goods supplied by the Appellants were against ICB or not and also whether the similar goods were also otherwise exempted from the customs duty and CVD under the Customs Act or not. This ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects, meets all the stipulated criteria specifically awarding of contract under ICB route. Further, there is a provision for supply through sub-contractor also, even though the sub-contractor might not have directly participated in the process of ICB for getting the contract, which was obtained by the main contractor namely BHEL in this case. It is also now clear that both these projects were Mega Power Projects in terms of certificates issued by the Ministry of Power and that these two projects would have been entitled for exemption under Customs Notification No. 21/2002-CU (serial no. 400). The wordings in the certificate issued by the Ministry of Power clearly matches with the wordings at serial no. 400 of this Notification. 20. Therefore, there is no specific requirement for signing of the Certificate by Chairman not of the PSU which is only in relation to the goods imported into India. In the case of goods procured domestically, the exemption is available as long as the supplies have been made against ICB and projects are meeting the criteria. In this case, the supplies have been made by the sub-contractor through contractor to the project duly recognised for entitlement of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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