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TMI Blog2024 (6) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... at the provisions of the Custom notification no. 21/2002 cannot be applied to the appellant who is not the importer of the goods. Therefore, the benefit of Sr. No. 91 of Notification No. 6/2006-CE and Sr. No. 336 of notification no. 12/2012-CE could not be denied to them as the goods were duly certified by the jurisdictional Assistant Commissioner to the effect that all the invoices were for the goods supplied against International Competitive Bidding. Non-observance of the condition with respect to furnishing of undertaking by the Chief Executive Officer - HELD THAT:- In view of the categorical findings of the Jurisdictional Assistant Commissioner that the genuineness of the quantum of the claim of the appellant on the verification of the invoices is not disputed and the appellant was duly in possession of the requisite certificate from the Chief Engineer in the Central Electricity Authority, copy of which was also marked to the department, it is found that the appellant had substantially complied with the provisions of the relevant notification and mere non-submission of undertaking was only a procedural infringement and substantial benefit cannot be decided merely for a bonafide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and 12/2010-C.E., dated 27-2-2010 (ii) Sr. No. 336 and 338 of Notification No. 12/2012-C.E., dated 17-3-2012 (iii) Notification no. 33/2005-CE dated 08.09.2005 (iv) notification no. 15/2010-CE dated 27.02.2010 (v) Notification no. 26/2012-C.E. dated 08-05-2012 but they had not given/ furnished any undertaking/ certificate/ intimation to the competent authority in terms of the said notifications and therefore, cleared the goods without payment of C. Ex. duty by wrongly availing the exemption of the aforesaid notification. 2. During reply to the impugned show cause notice, the appellant stated that they had availed the benefit under Sr. No. 91 91A of the Notification no. 06/2006- dated 01.03.2006 as amended and not under Sr. No. 91A 91B of the notification. Further, it was stated that they had availed benefit of Sr. No. 336 of the Notification No. 12/2012-C.E., dated 17-3-2012 and not Sr. No. 337 of the notification. Further, they claimed that the benefit under all the impugned notifications no. 6/2006 as amended, notification 12/2012, notification no. 33/2205, notification no. 15/2010, and notification no. 26/2012 was correctly availed by them. 2.2 The Principal Commissioner vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject furnishes an undertaking to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction, to the effect that - i. the said goods will be used only in the said project and not for any other use; and ii. in the event of noncompliance of sub-clause (i) above, the project developer will pay the duty which would have been leviable at the time of clearance of goods, but for this exemption. 12/2012 336 Any Chapter All goods supplied against International Competitive Bidding If the goods are exempted from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under section 3 of the said Customs Tariff Act when imported into India. 33/2005 amended by Nof. 38/2005 - Any Chapter all items of machinery, including prime movers, instruments, apparatus and appliances, control gear and transmission equipment and auxiliary equipment (including those required for testing and quality control) and components, required for initial setting up of a project for the generation of power using non-conventional materials, namely, agricultural, forestry, agro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale and purchase of electricity generated using non-conventional materials, for a period of not less than ten years from the date of commissioning of the project. 15/2010 - - all items of machinery, including prime movers, instruments, apparatus and appliances, control gear and transmission equipment and auxiliary equipment (including those required for testing and quality control) and components, required for initial setting up of a solar power generation project or facility before the clearance of the goods from the factory, the manufacturer produces to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, a certificate, from an officer not below the rank of a Deputy Secretary to the Government of India in the Ministry of New and Renewable Energy recommending the grant of this exemption and the said officer certifies that the goods are required for initial setting up of a solar power generation project or facility; and (2) the manufacturer of such goods furnishes an undertaking to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction, to the effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case law in BALLARPUR INDUSTRIES LTD. 2007 (215) E.L.T. 489 (S.C.), RELIANCE PORTS AND TERMINALS LTD. 2016 (334) E.L.T. 630 (Guj.) and CCE v. Brindavan Beverages (P) Limited 2007 (213) E.L.T. 487 (S.C.) that order beyond the scope of show cause notice is not sustainable. H further argued that the commissioner also observed and accepted that when like goods are imported into India than same are exempted under sr.no.214, 216 400 of the Notification No. 21/2002-Cus dated 01/03/2002. With respect to non-observance of condition no. 29, 31 86 of the customs notification, he argued that the same pertains to import of goods only and is cannot be applied to them as they are not the importer. 2.6 He relied upon the case law of KENT INTROL PVT. LTD 2014 (301) E.L.T. 84 (Tri. - Mumbai), tribunal which has been upheld by the Bombay high court in the case of COMMISSIONER OF CENTRAL EXCISE, NASHIK v/s KENT INTROL PVT. LTD 2016 (331) E.L.T. 77 (Bom.), Sandvik Asia Ltd 2019 (5) TMI 869- CESTAT AHMEDABAD JINDAL STEEL POWER LTD 2015 (329) E.L.T. 595 (Tri. - Del.) where it has been held that these conditions under the customs notification no. 21/2002 are applicable to the importer only and could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices as per the Annexure have been verified by this office and found in accordance with the respective Project Certificate. 2.8 On the basis of above report Ld. Counsel for appellant has contended that though admittedly the appellant did not submit the requisite under taking from the Chief executive officer of the project, nevertheless there was a substantial performance of the conditions of notification 6/2006-CE in as much as they were in possession of the certificate from Chief Engineer in the Central Electricity Authority , a copy of which was been marked to the jurisdictional Deputy/Assistant Commissioner and all the invoices as reported by the Jurisdictional Assistant Commissioner were in accordance with the provisions of the notifications 6/2006-CE and 12/2012-CE. He further stated that on same ground, the Principal Commissioner had dropped demand under Sr. No. 338 of notification 12/2012-CE which prescribed the same condition of submission of undertaking from the Chief Executive Officer of the project. 3. On the other hand the Learned Authorised representative of the Revenue has re-iterated the findings of the impugned order that the submission of the documentary evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Notf. 46/2008 as well as notification 12/2012-CE. Accordingly, we drop the demand on this issue. Notification 33/2005-CE as amended vide Notf. 38/2005 and Notification No. 15/2010-CE as amended vide Notification No. 26/2012-CE 7. In this case the demanded has been confirmed by the Ld. Pr. Commissioner on the ground that the appellant has failed to produce the requisite certificate to the Deputy Commissioner of Central Excise issued by the Deputy Secretary to the Government of India in the Ministry of Non-Conventional Energy Sources/ Ministry of New and Renewable Energy as well as an undertaking that the goods will be used only in the said project and not for any other use. Ld. Counsel for the Appellant has argued that the requisite Certificate from the Ministry was endorsed directly to the Deputy Commissioner, therefore the necessary condition in this respect is satisfied. He further argued that the Jurisdictional Assistant Commissioner in his report dated 26.02.2016 has stated that all the invoices as per Annexure has been verified and found as per the goods supplied for the project. Therefore, the requisite condition has been substantially satisfied. As the appellant has ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t merely for procedural lapse. Even the Hon ble Supreme Court in the judgement in the case of Hari Chand Shri Gopa cited by the AR has made an exception to such procedural lapse where it is ascertained that the manufacturer was eligible to avail the exemption. The Hon ble Apex Court in para 29 of the judgement has cited with approval that In J.K. Synthetics (supra), the assessee was the manufacturer of polyster chips, staple fibre and tow from Mono-Ethylene Glycol (MEG). On importing those goods, they claimed exemption from payment of additional duty of customs thereon because MEG was exempted from the payment of excise duty by virtue of notification dated 4-5-1987 issued under Section 8 of the Tariff Act. In that case, the contention was raised by the Revenue that the assessee had not followed the conditions laid down in Chapter X of the Excise Rules. But the Tribunal, on facts, found that there had been substantial compliance of the procedure by the assessee, which was approved by this Court without laying down any principle as such which cannot be applied to the facts of the present case. 9. In view of the above discussion, we are of the considered view that there was a substant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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