TMI Blog2013 (10) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of N/N. 108/95-C.E. in respect of goods cleared by them for use in earthquake affected area - appeal allowed - decided in favor of appellant. - E/132/2007-DB - Final Order No. A/11350/2013-WZB/AHD - Dated:- 22-10-2013 - Shri M.V. Ravindran, Member (J) and H.K. Thakur, Member (T) Shri J.C. Patel and Rahul Gajera, Advocates, for the Appellant. Shri Manoj Kutty, AR, for the Respondent. ORDER [Order per : M.V. Ravindran, Member (J)]. - This appeal is directed against Order-in-Appeal No. COMMR.(A)/209/VDR-I/2006, dated 20-11-2006. 2. The relevant facts of the case, in brief, are that the appellants have cleared excisable goods, viz. TMT bars falling under Heading 7214.90 at Nil rate of duty under Notification No. 108/95-C.E., dated 28-8-1995 on the strength of Project Authority Certificates issued in the name of the contractors who had been awarded the work under the projects viz. Gujarat Earthquake Rehabilitation and Reconstruction Project (GERRP) funded by Asian Development Bank, Gujarat State Highway Project funded by the World Bank Loan Assistance, and Urban Infrastructure Project funded by the Asian Development Bank. The impugned notification exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute that the appellant had produced certificate from the Project Implementing Authority duly countersigned by the Principal Secretary/Secretary of the State Government as stipulated but the said certificate was in the name of the contractor and the appellant s name was not mentioned anywhere as contractor or as a sub-contractor. It is his submission that the TMT bars which were cleared by the appellant, in fact, used for reconstruction of Kuchh area, is undisputed. It is also his submission that it is also not in dispute that the appellant had produced all the certificates claiming exemption under Notification No. 108/95, before the goods were cleared from the factory premises and the said clearances were reflected in the returns filed with the Department. It is his submission that limitation aspect also will arise in this case. It is his further submission that on merit, the issue involved in this case is now decided by the Hon ble High Court of Madras in Civil Appeal filed by CCE, Pondichery v. Caterpillar India Pvt. Ltd. [2013-TIOL-562-High Court-MAD-CX = 2013 (297) E.L.T. 8 (Mad.)]. It is his submission that this Bench has been consistently following this view, as can be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l.)] and despite it held in favour of the assessee. It is his submission that this decision of the Tribunal at Ahmedabad, has not been challenged by the Revenue in any higher forum. 10. We have considered the submissions made at length by both sides and perused the records. 11. The only issue to be decided in this case is whether the appellant is eligible for the benefit of Notification No. 108/95-C.E. on a certificate which has been issued in the name of the contractor who was executing the project which has been financed by World Bank and Asian Development Bank. 12. In the case in hand, it is undisputed that the appellant had filed the certificate issued by the Project Implementing Authority/Secretary State Government while clearing the goods from the factory premises. The said clearances took place for the period April, 2004 to January, 2005. It is also not undisputed that the said material i.e. TMT steel bars cleared by the appellant were consumed in the project financed by World Bank and Asian Development Bank in the earthquake affected area of Kuchh. 13. On this factual background, it is to be seen whether the benefit of Notification No. 108/95-C.E. can be extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad Project financed by United Nations and International Organisation, thus, thereby, claimed exemption from duty. 4. The claim of the assessee was however disputed by the Revenue by issuing a show cause notice demanding duty of ₹ 89,74,400/- on the ground that the assessee had cleared the goods to the Contractors on the respective projects and not to the Project Implementing Authority themselves and that the contractors continue to be the owners of the goods even after the completion of the projects. 5. The contention of the Revenue was contested by the respondent by filing a reply stating that expression intended to be supplied to has not been defined. The assessee contended that the said phrase has to be understood as one required for implementation of the Project as appearing in sub-clauses (i) and (ii) of Clause (c) of proviso of Notification; thus, the question of rejection of the benefit under the Notification does not arise. The assessee pointed out that when the object of the Notification is met, the exemption could not be rejected. 6. The claim of the assessee was however rejected by the Commissioner of Central Excise and reconfirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct itself being executed fully by the Contractors as per the directions of the Project Implementing Authority, the fact that the machineries were not given directly to the project implementing authority but given to the agency executing the work in fact cannot go against the assessee s claim. Thus ultimately, as the machineries had been put in use by the sub-contractors, who were given the job of execution the claim for exemption cannot be denied. The use of the phrase supplied to the projects financed by the said United Nations or an International Organisation and approved by the Government of India clearly shows that the condition for grant of exemption is supply of the goods towards the project and nothing beyond. The extract of the Notification No. 108/95-C.E., dated 28-8-1995 reads as follows :- In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excises and Salt Act, 1944 (1 of 1944) read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all goods fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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