TMI Blog2023 (4) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificates and Expert Opinions submitted by them. However, there is no specific Exemption available to Batteries as such in the said Notifications. The Ld. Advocate for the Appellant stated that as there were contrary decisions on the subject matter, the issue was referred to the Larger Bench, in the case of M/S. REED MEDWAY PACKAGING CO. OF INDIA PVT. LTD. VERSUS CCE, DELHI-IV [ 2017 (5) TMI 93 - CESTAT NEW DELHI] . In that case, the Larger Bench held that there was no conflict in the said two decisions referred to Larger Bench. Both deals with different issues while considering the Exemption under the same Notification - From the decision of the Larger Bench, it is observed that if the part/device manufactured by the Appellant can be considered as an integral part of the non-conventional Energy systems, then the exemption under Notification 6/2002, dated 01/03/2002 as amended, is available. On the other hand, if it is only a part of the system which has no independent function on its own which cannot be called a device with independent function and cannot be called an integral part of the System, then the exemption would available only if the part is manufactured and consume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wdhury, Authorized Representative for the Respondent ORDER PER K. ANPAZHAKAN : The facts of the case are that the Appellant No 1(Herein after Appellant) are engaged in the business of manufacturing Tubular Plate Lead Acid Batteries falling under Tariff Heading 85072000 of the First schedule to the Central Excise Tariff Act, 1985, since April 2005. The appellant claimed that these batteries are specifically designed for use in solar photovoltaic modules/ system, to store the electricity generated by solar cells and are an integral part of the photovoltaic module. 2. During the period from April 2005 to September 2009, the Appellant have cleared the said batteries manufactured by them without payment of duty to M/s Sunshine Power Products Ltd. and M/s Sun Power Technologies Ltd. (Buyers), who were engaged in the business of manufacturing solar photovoltaic power generating systems and devices. The Appellant cleared the said batteries without payment of duty excise duty in terms of Sl. No. 237 (Read with List 9) of Notification No. 6/2002-CE dated 01.03.2002 and Sl. No. 84 (read with List 5) of Notification No. 6/2006-CE dated 01.03.2006, which exempted non-conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under CST Act and West Bengal sales Tax Rules, 1995 (6) Certificate issued by the West Bengal Pollution Control Board Permitting to manufacture lead acid batteries (only solar battery assembling and no other purpose). (7) Specifications for solar Photovoltaic systems issued by Ministry of New and Renewable Energy specifying batter as essential part of these system. 7. The appellant submitted that such batteries qualify as integral/ essential component of the solar photovoltaic devices (PV devices). The Appellant further submitted that inasmuch as these batteries are essential component of the Solar Power Generating System, they would quality as non-renewable energy device per se which is eligible for exemption. 8. In this regard, they placed reliance on the case of CCE, Delhi-IV V. Rachitech Engineers Pvt. Ltd., 2015 (326) E.L.T. 377 (ri.-Del.), wherein the identical entry of the exemption notification was under consideration. The assessee supplied chimney of M/s ISGEC John Thompson who were manufacturing and supplying the complete boiler system to the end user, which system qualified for exemption under the S. No. 16 of the List 9 of the Notification No. 6/2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Customs, New Delhi-2008 (224) ELT 349 (S.C.), which interpreted the term used within the factory to hold that it would apply even in relation to the imported scrap and not necessarily scrap generated within the factory in India. The said judgment was relied upon by the Hon ble Tribunal in the case of CC, Amritsar Vs. Malwa Industries Ltd., 2008 (229) ELT 233 (Tri.-Del.), where again the benefit of excise exemption available to finishing agents, dye carriers etc. and other products and preparations used in the same factory to manufacture textile and textile articles was held applicable to the imported finishing agents, dyes etc. for use in the textile and textile manufacturing units, was also held to be admissible. This case was affirmed by the Hon ble Supreme Court, reported at 2009 (235) E.L.T. 214 (S.C.). 13. Further, interpreting the identically worded entry [at S. No. 20 of the List 5 of the exemption notification No. 6/2000-CE], the Hon ble CESTAT, Mumbai, in the case of Pushpam Forgings Vs. CCE-2006 (193) ELT 334 allowed the benefit of exemption on MS flanges, which is a part of a windmill even if they were not consumed within the factory of manufacture and cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns; (i)Savira Industries Vs. CCE, Chennai-II, 2016 (331) ELT 504 (Tri.-Chennai). (ii)Easland Combines Vs. CCE, Coimbator, 2003 (152) ELT 39 (SC). (iii)M.P. Laghu Udhyog Nigam Ltd., Vs. CCE, Bhopal, 2015 (37) STR 308 (Tri.-Del.). (iv)Future Link India Vs. CCE, Delhi-II, 2017 (48) STR 353 (Del.). 19. In view of the above cited decisions, they contended that extended period is not invocable on account of bonafide interpretation of the Exemption Notifications adopted by the Appellant and also in the absence of any positive act on part of Appellant to have suppressed information from the Department. 20. They also claimed that, without prejudice to the aforementioned submissions, the benefit of cum-duty computation ought to be permitted. Explanation to Section 4 of the Central Excise Act, 1944 provides that the price actually paid for excisable goods to an assesse shall be deemed to be cum-duty price which shall be deemed to include duty payable on such excisable goods. 21. In this regard, they placed reliance on the judgment of the Hon ble Tribunal in the case of Lubrizol Advanced Materials India Pvt. Ltd., Vs. CCE,. Vadodara -2013 (290) ELT 453 (Tri.-Ahmd.) wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific Exemption available to Batteries as such in the said Notifications. 25. In their submission, the Departmental Representative stated that the Battery is capable of multipurpose use. Many other similar manufacturers manufacturing such Batteries at places other than the factory of production of Solar Power Generating Systerms are clearing their goods on payment of duty. Accordingly, he contended that the Exemption provided in the above said Notifications are available only to Solar Power Generating Systems and not the Batteries since the Battery cannot be considered as a Solar Power Generating System on its own. In support of his argument he relied upon the decision of the Tribunal in the case of Raydean Industries Vs. Commissioner of CGST, Jaipur, 2022 (4)TMI 1155 CESTAT New Delhi, wherein it has been held that Module Mounting Structures manufactured elsewhere and supplied to Solar Power Water Pumping Systems are not entitled for the benefit of Entry No 332 of the Notification 12/2012 CE dated 17.03.2012. The relevant portion of the order is reproduced below: 13. The issue that arises for consideration in this appeal is whether module mounting structures , which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. No.(10) but the Mounting Structure for Solar Photovoltaic Module had not been specified therein. I further find that on being asked by the jurisdictional Superintendent of erstwhile Central Excise Range-V of Division-II, Jaipur vide letter C.No.:CE- 20/RV/Misc./45/2015/336 dated 31.12.2015 to submit clarification as to how the goods cleared were covered under the above said Notification, the noticee vide letter dated 05.01.2016 submitted that the Solar Power Generating System primarily consists of (1) Solar Photovoltaic Module (2) Mounting Structure for Solar Photovoltaic Module (fixed tilt or tracking type) and (3) Solar Inverter; that they have been manufacturing and selling Mounting Structure for Solar Photovoltaic Module (fixed tilt or tracking type), which forms an integral part of Solar Power Generating System and is covered under List No.8 to the Notification No.:12/2012-CE (SI.No.332). 5.6.4 I also find that as per entry at serial number (21) of the List 8, the exemption from Central Excise Duty was available to the parts consumed within the factory of production of such parts for the manufacture of goods specified at S. Nos. 1 to 20 in List 8, which implies t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, 2001. (emphasis supplied) 16. The Principal Commissioner has rightly concluded that the serial number 10 of List 8 refers to solar power generating system and not to module mounting structures manufactured by the appellant and only parts consumed within the factory of production of such parts for the manufacture of goods specified at serial numbers 1 to 20 of List 8 are exempted from payment of central excise duty. 17. The Principal Commissioner has also correctly appreciated the effect of the amendment made on 11.07.2014 to the aforesaid notification dated 17.03.2012. According to the Principal Commissioner, prior to the amendment only parts consumed within the factory of production of such parts for the manufacture of goods specified at serial numbers 1 to 20 of List 8 were exempted, but after the said amendment the exemption is also available to parts of goods specified at serial numbers 1 to 20 of List 8 in a situation where it is consumed not only within the factory of production for the manufacture of goods specified in List 8 but also when used elsewhere than in the factory of production, subject of course to the condition that the procedure laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Project , all the material equipments used for the purposes of setting up power based project are certainly entitled for grant of exemption. 20. In the considered opinion of this Court, the Learned Commissioner, with a total non-application of mind, has passed the impugned order, and therefore, the impugned order dated 25-3-2017 passed by the Learned Commissioner deserves to be quashed and is accordingly quashed. The 13 E/52480/2019 respondents shall grant exemption under Entry No. 71(10) in respect of sub-station equipment/grid and all other equipments supplied by the petitioner during the course of execution of its works contract, as they form integral part of solar power generating system. Recovery, if any, on account of impugned order dated 25-3-2017 also stands quashed. The petitioner shall be entitled for all consequential benefits. 20. The Madhya Pradesh High Court was examining a policy framed by the State Government which was different from what is contained in the notification dated 17.03.2012 under consideration. It is seen that the notification dated 17.03.2012 while describing the excisable goods refers to non-conventional energy devices or systems specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s further observed that there is very thin distinction between part and device, as the device is thing made for a particular purpose and since chimney being an internal part of the biomass fired boiler can be treated as a device for nonconventional energy device/systems, the exemption under this notification would be available to the chimneys. We note that in fact, the Tribunal was deciding the availability of the exemption to a specific item (chimney) in terms of Sl. No. 16 of the List 9. 8. In Gerb Vibration Control Systems (P) Ltd. - 2008 (223) E.L.T. 390 (Tribunal-Bang.), the Tribunal specifically examined the entitlement of the appellant under Sl. No. 21 of the said notification. It was held that in terms of the said entry, the parts should be consumed within the factory of production. In such situation, the exemption was denied to the appellant for nonfulfilment of such condition. As can be seen, these two cases dealt with different issues, while considering the exemption under the same notification. 9. It is pertinent to note that in the submissions before us, the ld. Counsel for the appellant categorically asserted that the certificate for exemption issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is on Revenue - In case of any ambiguity in a taxing statute imposing tax liability on the assessee, benefit of doubt to be given to assessee. [para 43] Interpretation of statutes - Statute must be construed according to the intention of Legislature - General Clauses Act applicable if while interpreting a statutory law, any doubt arises as to the meaning to be assigned to a word or a phrase or a clause used in an enactment and such word, phrase or clause is not specifically defined - Notwithstanding this, when there is repugnancy or conflict as to the subject or context between General Clauses Act and a statutory provision which falls for interpretation, Court must necessarily refer to the provisions of statute. [paras 15, 18] Interpretation of statutes - Words in a statute when clear, plain and unambiguous and only one meaning can be inferred, Courts bound to give effect to the said meaning irrespective of consequences - In applying rule of plain meaning any hardship and inconvenience cannot be the basis to alter the meaning to the language employed by the legislation especially in fiscal statutes and penal statutes. [paras 19, 20] Interpretation of taxin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading Sr. No. 20 of lists, only on the grounds that flanges were not eligible since they were not consumed in the factory of production for the manufacture of tower has to be considered with the fact that tower of a Wind Mill being huge structures would only came into existence in the factory of manufacture as a design in fact they would arise only infact at site after assembly using the flanges. Consumption at site in tower is not questioned on facts nor it can be said that flange is not used where the tower came into existence. The concept of interpretation of consumed in factory of production limiting the same to the Central Excise registered premises of the appellants herein deprive the use at site cannot be upheld. 2.3 In any case, the flange being part of tower which is Essential Component of Wind Operated Electrical Generator, an unconventional energy service device, would be eligible under Sr. No. 5 if not under 20 as part of Sr. No. 1 to 19. Coverage is also to be available under Sr. No. 13 of list 5. 2.4 The reliance placed on the decision of Damodar I. Malpani - 2002 (146) E.L.T. 483 (S.C.) submission of invoices of other manufacturer having been e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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