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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 ..... /s. BHEL. The refund of the duty paid by the ultimate consumer cannot be denied alleging that the supplier has availed credit. When the duties are exempted for supplies made to Mega Power Project, the same cannot be frustrated by imposing conditions which are beyond the control of the respondent. In the present case, the power project has been constituted by 5 units each of the capacity of 270MW. There is no ground to differ with the view taken by Adjudicating Authority and the Commissioner (Appeals). Unjust enrichment - HELD THAT:- It is seen that both M/s. BHEL as well as EPIL have filed disclaimer certificates before the Department that the incidence of duty has been borne by respondent. Therefore there is no issue of unjust enrichment also - the Adjudicating Authority as well as the Commissioner (Appeals) have correctly analysed the refund claim and sanctioned the same. The appeal filed by the Department seems to be of misconception of facts and law. The appeal filed by the Department is dismissed. - HON BLE MS. SULEKHA BEEVI C. S. , MEMBER ( JUDICIAL ) And HON BLE MR. VASA SESHAGIRI RAO , MEMBER ( TECHNICAL ) For the Appellant : Ms. O. M. Reena , Authorised Representative Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority erred in granting the refund since sanctioned refund of excise duty is contingent on the non-availment of CENVAT credit of duty paid on the inputs. ii. that availment of CENVAT credit on imported goods used in the manufacture of goods cleared under international competitive bidding to Mega Power Project has not been considered by the Adjudicating Authority. iii. that M/s. BHEL had paid duty on importation of inputs and availed CENVAT credit, and also paid excise duty on their supplies to the power plant. Consequently, the claim of refund by the respondent cannot sustain. iv. the benefit of credit and exemption is not envisaged in Rule 6 of CENVAT Credit Rules, 2004. v. that exemption from the applicability of sub rules 1, 2, 3, 4 of Rule 6 of CCR, 2004 is available only if the goods are exempted from payment of customs duties and additional duty when imported into India. vi. since BHEL had paid customs duties and other duties and also availed CENVAT credit, the exemption under Rule 6(6) CCR, 2004 is not available. 2.7 The Commissioner (Appeals) vide order impugned herein upheld the view taken by the Adjudicating Authority sanctioning the refund. Against such order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from which supply of power has been tied up through tariff based competitive bidding for a mega power awarded to a developer on the basis of such bidding with condition No. 28 that: (j) if such goods are exempted from the duties of customs leviable under the First Schedule of 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 (k) An officer not below the rank of Joint Secretary to the Government of India, in the Ministry of Power certifies that the goods are required for a project of the nature specified in column (3) against S.No. 91B of the table (i) The Chief Executive Officer of the project 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 - vii. The said goods will be used only in the said project and not for any other use, and viii. In the event of failure to observe sub-clause (1) above, the manufacturer will pay the duty which would have been leviable at the time of clearance of goods, but for the exemption. 3.6 S.No. 400 of Notification No. 21/2002 Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto India. In other words, the exemption is not available, if duty is paid on the goods imported. In the present case, M/s. BHEL had paid the duty on the imported goods as the required certificate was not available at that time. The condition as per Sl. No. 91B was not satisfied at the time of import of goods and therefore the benefit of Notification No. 06/2006-CE dated 01.03.2006 cannot be extended to M/s. BHEL. The respondent would be eligible exemption of excise duty only if M/s. BHEL has availed exemption while importing the goods. However, after the production of Cetificates, the application for refund is filed. The duty having been paid by M/s. BHEL, they would have availed the credit on such duty. The refund of duty by respondent is wrong since M/s. BHEL would have availed the credit of such duty which they have paid duty under protest. It is prayed that the appeal may be allowed. 4.1 The Ld. Consultant Shri Deepak Suneja appeared and argued for the respondent. It is asserted by the Ld. Consultant that in the Show Cause Notice, the only allegation raised by the Department is that the benefit of exemption Notification is not eligible as the Mega Power Project does not have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is whether the ground raised in the appeal that since M/s. BHEL had imported the goods by paying the duty under protest and so would have availed credit of the said duty and therefore the respondent is not eligible for refund is sustainable or not. Rule 6(6)(vii) of CENVAT Credit Rules, 2004 provides 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 (i) (ii) (iii) (iv) (v) (vi) (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 Section 3 of the said Customs Tariff Act when imported into India and supplied against International Competitive Bidding in terms of Notification No. 6/2002-Central Excise, dated the 1st March, 2002 or Notification No. 6/2006-Central Excise, dated the 1st March, 2006, as the case may be. 7. It is clear from the above CENVAT Credit Rules that the bar under sub-rule (1) of Rule 6 not to avail credit of goods which are exempted from payment of duty is not applicable to inputs meant for use in the manufacture of finished produc ..... 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