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2015 (9) TMI 574 - BOMBAY HIGH COURT

2015 (9) TMI 574 - BOMBAY HIGH COURT - 2015 (324) E.L.T. 89 (Bom.) - Denial of exemption claim - Whether the Load Spreading Plates (LSP) manufactured by the three Appellants and Towers can be considered to be covered under "Wind Operated Electricity Generator, its components and parts", which are exempted under Notification No. 6 of 2006 - tribunal has clubbing the three appeal and delivered different decisions - Held that:- Tribunal held that various judicial pronouncements have, according to t .....

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Anchor Rings, Tower Doors are foundational parts or not.

There was no justification for giving different treatment to the case of the Petitioner. The Tribunal was aware of the controversy, the issue before it and stated to be common to all the Appellants. If there was justification for rendering a separate finding in the case of the Petitioner's Appeal, then, in the first instance it is not clear as to why it was clubbed along with other Appeals. If all three Appeals involve similar .....

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eedings/Reference. - Decided in favour of Assessee. - Writ Petition No. 7889 of 2015 - Dated:- 31-8-2015 - S. C. Dharmadhikari And B. P. Colabawalia, JJ. For the Appellant : Mr Prakash Shah with Mr Prasad Paranjape and Mr Arun Jain For the Respondent : Mr Y R Mishra with Mr Neelesh V Kalantri ORDER P. C. This Petition, under Article 226 of the Constitution of India is challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai. 2) Ordinarily, a .....

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ing the Petitioner to any other remedy, even if existing, would not be efficacious and expedient, bearing in mind the request of the Petitioner. 4) Very few facts are necessary to be noted for appreciating the submissions of Mr. Shah appearing for the Petitioner. The Petitioner was originally constituted as a proprietorship concern. A show cause notice was issued to this proprietorship concern dated 1st March, 2013. With effect from 1st November, 2013, the sole proprietorship concern was taken o .....

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onventional energy devices/systems specified in List 5 of the said Notification falling under any Tariff Entry of the Central Excise Tariff Act, 1985 from the whole of the excise duty specified thereon under First Schedule of the said Central Excise Tariff Act, 1985. Annexure 'C' is a copy of the said Notification. 5) The Petitioner claims that this exemption was available to the manufacturer like the Petitioner. Paras 11 and 12 of the Petition are devoted to entitlement for exemption. T .....

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referred against this order and that was heard by the Tribunal and the Petitioner noted that there were two more Appeals of two other corporate entities, which were listed for hearing together with the Appeal of the Petitioner. The Tribunal was of the view that all the three Appeals involve similar issue. The Appeals were therefore decided by a common order. The Tribunal passed a final order dated 25th September, 2014 partly allowing the Appeal filed by the Petitioner. The duty demand was confir .....

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of mistakes in the initial order of the Tribunal. That application was heard by the Bench of the Tribunal and it dismissed the same on 1st May, 2015. In the light of the above, the only contention raised before us by Mr. Shah is that if all three Appeals involve the same issue or the essential issue was identical therein, then, the Tribunal should have been consistent in its approach. It should have referred the Question in all three Appeals for opinion and answer by a larger Bench. The question .....

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Appeal and deciding it without answering any legal question has prejudiced the Petitioner enormously. The impugned orders therefore be set aside. 8) On the other hand, Mr. Mishra appearing for the Revenue supported the orders of the Tribunal. He urged that the Tribunal had formulated the question for reference to the larger Bench. In the case of the present Petitioner, the issue of any specially designed device which runs on windmills and in relation thereto, is not raised. The Tribunal has hel .....

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that this Court in Writ Jurisdiction does not act as a further Appellate Court. It is only issuing a Writ of Certiorari and for quashing and setting aside the order of a subordinate Court or Tribunal after concluding that the Tribunal has failed to act in accordance with law or failed to exercise the jurisdiction vested in it by law or has exercised a jurisdiction not vested in it by law or that the orders passed by the Court or Tribunal suffer from an error apparent on the face of the record or .....

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ter setting out the background in which the Notification was issued and the nature of the product manufactured, its components and parts in para 10, in para 11, the Tribunal held that various judicial pronouncements have, according to the Counsel, allowed exemption to Towers and their parts. However, no judicial pronouncement regarding exemption to foundation parts, namely, Anchor Rings and LSP has been brought to the Tribunal's notice. It is thereafter that the Tribunal attempted to disting .....

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Notification has been discussed and reference is made to an interim order in the case of the present Petitioner. Those interim findings and tentative views have been relied upon to distinguish the case of the present Petitioner from that of the others. Thereafter, in para 13, the Tribunal holds that the Counsel has not been able to satisfy that the terms 'windmill' and 'WOEG' are synonymous or used interchangeably. The guidelines and the forms filed as per requirement of Ministry .....

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ribunal then referring to individual facts pertaining to the present Petitioner and upholding the duty demand along with interest. Paras 17 to 20 of the Tribunal's order read as under: "17. We do not consider these cases fit for imposition of penalty as Gemini had been declaring the goods namely wind mill doors in their ER1 returns. Further there have been contrary judgments on the issue as to what may be considered as parts of windmill and WOEG. 18. In our view, benefit of exemption no .....

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h because our view is contrary to the view taken by a Coordinate Bench in the matter of the same assessee for a different period. The issue to be considered by Larger Bench is framed as follows: Whether a manufacturer is entitled to claim the benefit and exemption from Central Excise duty on 'wind mill doors' under Notification No. 6/2006 dt. 1.3.2006 which grants exemption to "wind operated electricity generator, its components and parts thereof including rotor wind turbine control .....

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three Appeals involve similar question and issue, then, it is nor clarified as to what distinguishes only the present Petitioner's case from the other two Appeals. If the issue was of the Exemption Notification, its construction and interpretation, the intention of the Government in granting the exemption, then, it is common to all the Appellants. In the circumstances, we do not find any support for the argument of Mr.Mishra that the Tribunal's order is neither erroneous nor illegal. 11 .....

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ve and except noted above by us, are appearing from the record. The Tribunal, rather than deciding the issue and construing and interpreting the Exemption Notification, has thought it fit to refer the same to a larger Bench. For, it thought that it may be arising in future cases. If the question or issue is of general public importance, requiring an authoritative pronouncement, then, we have not found any reason, much less cogent and satisfactory for leaving out the Petitioner from the Reference .....

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