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M/s. L & T Komatsu Ltd. Versus Commissioner of Central Excise, Service Tax and Customs Bangalore-IV

2016 (7) TMI 290 - CESTAT BANGALORE

Claim of exemption of Notification No.108/95-CE dated 28.8.1995 as amended - goods supplied to the projects funded/financed by the United Nations or an international organisation and approved by Government of India. - Revenue’s main argument is that in the case of 196 Hydraulic Excavators, new condition that the goods required for the projects are not to be withdrawn after the execution of the project (as made applicable by the amendment Notification No.13/2008-CE dated 1.3.2008 to the original .....

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tation and the penalty imposed by the impugned order deserves to be set aside. - Decided partly in favor of appellant. - E/296/2010-DB - Final Order No. 20340/2016 - Dated:- 2-2-2016 - Smt. Archana Wadhwa, Judicial Member and Shri Ashok K. Arya, Technical Member Shri S. Muthu Venkataraman, Advocate For the Appellant Shri Pakshi Rajan, Asst. Commissioner (AR) For the Respondent ORDER Both the parties have been heard in detail. The matter was presented on behalf of the appellant by Shri S. Muthu V .....

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erted an Explanation to the original Notification No.108/95-CE. The Notification No.13/2008-CE dated 1.3.2008 made the following amendment to the Notification No.108/95-CE. In the said notification, the Explanation shall be numbered as Explanation 1 thereof, and after Explanation 1, as so numbered, the following Explanation shall be inserted, namely:- Explanation 2 - For the removal of doubts, it is hereby clarified that the benefit under this notification, in the case of goods supplied to the p .....

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ght into approved projects are not withdrawn by the supplier or the contractor. 3. Revenue s main argument is that in the case of 196 Hydraulic Excavators valued at ₹ 73,57,50,952/-, which were supplied taking benefit of this Notification No.108/95-CE dated 28.8.1995 for the supplies as per the unamended Notification during the period for 2004-05 to 2008-09 (up to December 2008) new condition that the goods required for the projects are not to be withdrawn after the execution of the projec .....

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otal demand of ₹ 11,97,61,791/- along with interest and also imposed equivalent penalty under Section 11AC of Central Excise Act, 1944. 4. The appellants have come to this Tribunal in appeal against the above order dated 30.12.2009 of the Commissioner of Central Excise, Bangalore-II. The appellants viz., L & T Komatsu Ltd. have mainly argued as follows: (i) Original Notification did not contain Explanation 2. It was introduced only on 1.3.2008 by Notification No.13/2008. (ii) Explanati .....

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vs. CCE: 2010 (255) E.L.T. 117, further stating that demand up to 28.2.2008 has to be set aside and the demand from 1.3.2008 to 31.8.2008 needs to be set aside as they have all along been approaching Deputy Commissioner of Central Excise through their letters dated 15.3.2008, 21.4.2008 and 22.4.2008 on the subject matter and there has not been any evidence that the goods were being diverted. 4.2 The appellants have also pleaded that the demand for extended period is not applicable inter alia on .....

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t well in advance and there cannot be any allegation of suppression of facts and therefore demand to be set aside. 5. All the facts on record and the submissions of both the sides have been carefully considered. 5.1 From the facts, it is clear that there has been no suppression of facts on the part of the appellants when the new Notification No.13/2008-CE dated 1.3.2008 was issued. After the issue of amended Notification No.13/2008-CE dated 1.3.2008 appellants approached the Department of Centra .....

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l Notification No.105/95-CE dated 28.8.1995, considering the Hon ble Supreme Court s decision in the case of UOI vs. Martin Lottery Agencies Ltd: 2009 (14) STR 593 (SC) and CESTAT Ahmedabad s decision in the case of Sirala Exports Ltd. vs. CCE (supra), this amendment cannot be made effective retrospectively. In this regard, the decision of the Hon ble Supreme Court in the case of UOI vs. Martin Lottery Agencies Ltd. (supra) is quoted below: 35.Reverting to the decision of a Kerala High Court in .....

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provided expressly or by necessary implication. [See also : Reliance Jute and Industries v. CIT [(1980) 1 SCC 139]. An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section (See: Sonia Bhatia v. State of U.P. [(1981) 2 SCC 585 at 598]. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main prov .....

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earned it in India. The word earned had been judicially defined in S.G. Pgnatale (supra) by the High Court of Gujarat, in our view, correctly, to mean as income arising or accruing in India . The amendment to the section by way of an Explanation in 1983 effected a change in the scope of that judicial definition so as to include with effect from 1979, income payable for service rendered in India . 19.When the Explanation seeks to give an artificial meaning earned in India and bring about a change .....

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