TMI Blog2015 (9) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... eligibility to exemption determined by prescribed method should not be denied based on other criteria – No dispute that Respondents paid additional duty of customs and also paid VAT therefore, benefit of exemption notification cannot be denied – Decided against revenue. - Appeal No. C/11025/2014-DB; C/Cross/13352/2014 - Order No. A/10532 / 2015 - Dated:- 7-5-2015 - Hon ble Mr. P.K. Das, Member (Judicial) And Hon ble Mr. H.K. Thakur, Member (Technical),JJ. For the Appellant : Shri K. Sivakumar, Authorised Representative For the Respondent : Shri P.P. Jadeja, Consultant ORDER Per: P.K. Das 1. The relevant facts of the case, in brief, are that the Respondents entered into an agreement with M/s Gama Infraprop Pvt. Ltd. (GIPL) for supply of certain equipments and materials for the power plant at Uttarakhand. GIPL is the project proponent decided to set up Power Plant at Udham Singh Nagar, Uttarakhand. The Respondent has been retained as EPC contractor through International Competition Bidding process, agreed to do erection, procurement and commissioning of the said plant. The Respondents imported a consignment described as Gas Turbine and Generator Unit MSD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd paid by them as 4% SAD (CVD) on imported goods at Mundra in terms of Notification No.102/2007-Cus, dt.14.09.2007 as amended by Notification No.93/2008-Cus, dt.01.08.2008. The Central Government exempted the goods, when imported into India for subsequent sale, from the whole of additional duty of Customs leviable under Section 3 (5) of the Customs Tariff Act. The exemption shall be given, if the following conditions are fulfilled:- (a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; (b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; (c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer; (d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itate the respondent for filing refund claim in time. This was mainly due to the aforesaid allegation that CST was paid only after filing of the refund claim whereas the CA certificate certifies payment of CST beforehand. In view of the factual position discussed supra, appellant-department s argument against the veracity of CA certificate also stands negated. 7.3 The above clauses make it clear that the role of the respondent has been itemized into two categories, i.e. supply of equipments and project co-ordination and management with prominence given to the former. Article 6 of the agreement indicates the total contract price as ₹ 493.70 Crores which includes CIF price of equipments at nearby Indian seaport or at Delhi domestic airport, packing charges for seaworthy transportation of equipments, transit insurance included on the supplies made on CIF basis and all applicable taxes/duties. Further, Article 10.2 which deals with the terms of shipment and title of the equipments, specifies that notwithstanding which party has title, care custody and control of the equipment and loss or damage thereto shall remain with the supplier (respondent) until passed to the buyer at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the power plant as a whole in their status as EPC contractor, respondent also assumes the status of an independent supplier of all equipments to the project. I have also examined as to what constitutes sale in terms of The Central Sales Tax Act, 1956. The definition of the term sale as defined under Section 2(g) of the said CST Act states:- sale , with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration, and includes a transfer of goods on the hire-purchase or other system of payment by installments, but does not include a mortgage or hypothecation of or a charge or pledge on goods 8.1 I have also considered the other grounds of appeal. Appellant-department has pointed out a variation in the date of supplier s invoice appearing in the BOE and in the sale invoice issued by the respondent. While BOE indicates the invoice date as 21.07.2011, sale invoice mentions the date as 21.08.2011. Although respondent has attributed the variation to a bonafide mistake in the data entry by customs officers which I find reasonable and acceptable. I fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. More so when the Commissioner, Sales Tax had accepted the Eligibility Certificate issued to the appellant and had separately notified the appellants eligibility for exemption under the 1993 G.O. In these circumstances the DCCT certainly could not assume that the exemption was wrongly granted nor did he have the jurisdiction under Section 20 of the State Act to go behind the eligibility certificate and embark upon a fresh enquiry with regard to the appellant s eligibility for the grant of the benefits. The counter affidavit filed by the respondents-sales tax authorities is telling. It is said that the Sales Tax Department had decided to cancel the eligibility certificates for sales tax incentives. As we have said the eligibility certificates were issued by the Department of Industries and Commerce and could not be cancelled by the Sales Tax Authorities. [See in this connection : Apollo Tyres v. CIT, Kochi, (2002) 9 SCC 1). 7. We find from the agreement, other documents and the detailed findings that there is no dispute that the Respondents supplied the materials in the project of M/s GIPL. It is a composite nature of the job and the bills and payment were made as per the agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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