TMI Blog2015 (6) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... ulfilment cannot be insisted in accordance with the principle of lex non cogit ad impossiblia which is applicable to the tax matters also. We, therefore, hold that the denial of exemption under Notification No.6/02 -CE and 6/06-CE on the ground that the goods imported would not be eligible for customs duty exemption under Notification No.21/03-Cus. is not correct. - decided in favour of assessee. - Excise Appeal No. E/448/2007-EX[DB] - Final Order No. A/51541/2015-EX(DB) - Dated:- 17-4-2015 - Rakesh Kumar, Member (T) And S K Mohanty, Member (J),JJ. For the Appellant : Shri Anurag Kapoor, Adv. For the Respondent : Shri M S Negi, DR ORDER Per: Rakesh Kumar: The facts leading to filing of this appeal are in brief as under:- 1.1 The appellant during the period from July 2005 to May 2006 supplied certain iron Steel angles channels Profile etc. to M/s. L T Ltd. on account of M/s Jindal Power against International Competitive bidding at nil rate of duty under Notification No.6/02-CE dated 01.03.2002 (Sl.No.301). The goods supplied by the appellant by availing of full duty exemption under this Notification were meant to be used for setting of 1000 Mega Watt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith full powers to tariff and (ii) The power purchasing states undertake, in principle, to privatize distribution in all cities each of which has a population of more than one Million . With regard to the third condition to be certified that the power purchasing state has agreed to provide recourse to that state's share of central plan allocations and other devolutions towards discharge of any outstanding payment in respect of purchase of power, the Joint Secretary of the Ministry of Power under his letter dated 17.08.2005 clarified that this condition is not applicable in case of independent power projects and the power projects, in question, is an independent power project. 1.3. The Department was of the view that since the Joint Secretary to the Government of India the Ministry of Power has not certified in respect of the power project, in question, that the power purchasing state has agreed to provide recourse to that state's share of central plant allocation and other devolutions towards discharge of any outstanding payments in respect of purchase of power, the conditions of the Customs Notification No,21/2002-Cus. are not fulfilled and, hence, the goods, if impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in any case, when certain condition: prescribed in the customs exemption notification is not applicable, the fulfilling of that condition cannot be insisted, in accordance with the principles of lex non cogit ad impossiblia, that in view of this the impugned order is not correct more so, when the Commissioner in para 8.1.3 has accepted that there is no dispute over the fulfilment of condition No.86 (a) (i) and 86 (a) (ii) and the dispute is only about condition No. 86 (a) (iii) which has not been fulfilled and that when the condition No.86 (a) (iii) is not applicable its fulfilment cannot be insisted and for non-fulfilment of duty exemption cannot be denied. He, therefore, pleaded that the impugned order is not correct. 6. Shri M.S. Negi, the ld. DR, defended the impugned order by reiterating the findings of the Commissioner and pleaded that the excise duty exemption under Notification No.6/02CE 6/06-CE in respect of the goods supplied against International Competitive Bidding is applicable subject to condition that the same goods, if imported into India, are fully exempt from basic customs duty and additional customs duty, that the exemption in respect of the goods, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national Competitive bidding are fully exempt from Central Excise duty subject to condition that the same goods, if imported into India, would be fully exempt from basic Custom duty and additional customs duty. Sl. No.400 of the exemption Notification No. 21/2002-Cus exempts the goods imported which are required for setting-up of any mega power project, that is to say interstate thermal power plant of capacity of 1000 mega power or inter state Hydel Plant of capacity of 500 mega Watt or more, as certified by Joint Secretary in the Ministry of Power the whole of the basic customs duty and additional customs duty. However this exemption notification is subject to condition No.86 of the exemption notification which is that if an officer not below the rank of Joint Secretary to the Govt. of India in the Ministry of Power certifies that - (a) the power purchasing state has constituted the regulatory commission with full power to fix Tariff (a) the power purchasing state under takes in principle to privatize distribution in all cities in that state which have population of more than one Million within a period to be fixed by Ministry of Power, and the power purchasing state has agreed t ..... 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