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TMI Blog2024 (7) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... to the vendors of EPIL. Consequently, EPIL procured goods from M/s. Bharat Heavy Electricals Ltd. (BHEL) who raised invoices on EPIL and the said company in turn raised invoices on the respondent. The payments were made by respondent to BHEL. 2.2 The goods supplied by BHEL to the respondent were exempted from excise duty vide Sl.No. 91B of Notification No. 06/2006-CE dated 01.03.2006. However, due to the non-availability of Certificate as prescribed under the exemption Notification, at the time of supply of goods, BHEL cleared the goods on payment of excise duty under protest. 2.3 On 11.04.2011, the respondent filed a refund application for refund of excise duty which was charged by BHEL on invoices issued from 03.07.2010 to 08.10.2010 as the supplies for the Mega Power Project are exempted as per Notification No. 06/2006 as above. 2.4 The Show Case Notice was issued to the Respondent proposing to reject the refund claim alleging that Amaravati Thermal Project is 5x270 MW only which does not satisfy the status of definition of Mega Power Plant as it is not a single unit of 1000 MWs and above, but its constituted by multiple units each of which are individually less than 1000 MWs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised invoices on the respondent. The Respondent had made payments directly to M/s. BHEL. Further, M/s. BHEL and M/s. EPIL had furnished disclaimer Certificates stating that they do not intend to file for refund of the duty. The Adjudicating Authority has wrongly held that respondent is eligible for the exemption of the Notification observing that the total capacity of all the units put together will be 1000MW. 3.3 On the issue of availment of CENVAT credit by M/s. BHEL on inputs used in the manufacture of finished goods supplied to the power project, the Original Authority has erroneously held that the said issue of CENVAT credit has to be dealt separately with M/s. BHEL who is the manufacturer. 3.4 Rule 6(6) of CCR, 2004 was referred to by the Ld. Authorised Representative which reads as under:- "(6) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are either - . . (vii) all goods which are exempt 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 sub-section (1) of Section 3 of the said Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jammu and Kashmir, Sikkim, Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland and Tripura or (h) An inter-state Hydel Power plant of a capacity of 500 MW or more, located in States other than those specified in clause (c) above shall be exempted from payment of customs duty and additional duty of customs subject to the condition (j) If an officer not below the rank of a Joint Secretary to the Government of India in the Ministry of Power certifies that- i) The power purchasing State has constituted the Regulatory Commission with full powers to fix tariff; ii) The power purchasing state undertakes, in principle, to privatise distribution in all cities, in that State, each of which has a population of more than one million within a period to be fixed by the Ministry of Power; iii) The power purchasing state has agreed to provide resource to that State's share of Central Plan allocations and other devolutions towards discharge of any outstanding payment in respect of purchase of power; k) In the case of imports by a Central Public Sector Undertaking, the quantity, total value, description and specifications of the imported goods are certified by the Chai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 6(6) of the CENVAT Credit Rules, 2004 would not be eligible as BHEL has paid the duty at the time of import of the goods. It is pointed out by the Ld. Consultant that on production of certificate as required under the Notification, the duties are exempt on the supplies made to the Mega Power Project. Though BHEL had collected the duty from the appellant, since the supplies made to Mega Power Project are exempted as per the above Notifications, the respondent is eligible for refund of duty. All these aspects have been correctly considered by the Adjudicating Authority as well as the Commissioner (Appeals) who have held that the respondent is eligible for refund. The Department has wrongly assumed that Rule 6(6)(vii) of CEVAT Credit Rules, 2004 would not be applicable. 4.3 The decision in the case of Commissioner of Customs, Mumbai Vs. Toyo Engineering India Limited [2006 (201) ELT 513 (SC)] was relied by the Ld. Consultant to argue that the ground which is not raised in the Show Cause Notice cannot be subsequently raised before the appellate forum. The decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Nagpur Vs. Ballarpur Industries Ltd. [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same cannot be frustrated by imposing conditions which are beyond the control of the respondent. 8. Moreover, in the present case, the only ground which has been raised in the Show Cause Notice is that the Mega Power Project is having 5 units which when put together only will be above 1000MW and therefore would not come within the condition of Notificaiton required for Mega Power Project. M/s. BHEL has furnished the required certificate issued by the Joint Secretary. Therefore, the Adjudicating Authority has correctly dealt with the issue which reads as under:- i. the term Mega Power Project is not defined in the subject Notification but is defined under the Customs Notification No. 21.2002-Cus dated 01.03.2003 with which the Excise Notification is linked. ii. the term Mega Power Project is defined vide Sl. No. 400 in the said Customs Notification. iii. In the case of goods supplied to Thermal Power Plants located in states other than those specified in clause A of the said Sl.No. 400, the term Mega Power Project shall be of a capacity 1000 MG or more. iv. In the instant case, it is seen that the plant capacity of 1350 MW is arrived by erecting 5 units each of which is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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