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Commissioner of Central Excise, Alwar Versus M/s. Kamdhenu Ispat Ltd.

Interpretation of circular dated 28.08.1995 - reliance placed on the decision of the case of the decision of Madras High Court in the case of Commissioner of C.Ex., Pondicherry Vs. Caterpillar India Pvt. Ltd [2013 (7) TMI 244 - MADRAS HIGH COURT] where it was held that 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 .....

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of the assessee. In view of the letter dated 2.5.2005, things are clarified, therefore, in our view, there is no error committed by the authority or Tribunal. No substantial question of law arises for consideration by this Court - appeal dismissed - DB Excise Appeal No. 20/2015 - Dated:- 16-11-2016 - K. S. Jhaveri And Mahendra Maheshwari, JJ. Mr. Anuroop Singhi for the appellant Mr. P.K. Kasliwal for the respondent ORDER By The Court 1. By way of this appeal, the Department has challenged the o .....

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010 (254) ELT 412 (P&H) and particularly paragraphs 16 and 18, which reads as under: 16. The argument of learned Counsel for the assessee that since M/s Thermax Babcock & Wilcox Limited, Pune had awarded as purchase order to the assessee for supply of steam generator and its accessories, directly to M/s Kakatia Cement Sugar & Industries Ltd., Hyderabad, so it (assessee) is entitled to the exemption clause on the basis of certificate issued in favour of M/s Thermax Babcock & Wilco .....

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the Notification (Annexure A1) and contrary arguments of learned Counsel for the assessee stricto sensu deserve to be and are hereby repelled in the obtaining circumstances of the case. 18. Accordingly, it is held that as no certificate was issued by the Project Implementing Authority approved by the Government of India in favour of the assessee, therefore, it (assessee) cannot claim exemption from duty on the basis of certificate (Annexure A2) issued in favour of the supplier M/s Thermax Babcoc .....

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supply to the other parties even when such other parties use the goods for the project? (iii) Whether the exemption would be available to goods supplied to the other parties especially when the goods supplied have a life span and utility far beyond the duration of the project and the preponderance of probability is that the goods will be withdrawn from the project and put to uses not covered by the exemption? (iv) Any other question of law as this Hon'ble High Court may formulate in the fact .....

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(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 falling under the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said goods) when supplied to the United Nations or an international or .....

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nce of the said goods, the manufacturer produces before the Assistant Commissioner of Central Excise having jurisdiction over his factory,- (a) in case the said goods are intended for the official use by the United Nations or an international organization, a certificate from the United Nations or that international organization that the said goods are intended for such use; (b) in case the said goods are - (i) supplied to an international organisation listed in the Annexure appended to this noti .....

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in the said Annexure, a certificate from an officer not below the rank of Deputy Secretary to the Government of India, in the Ministry of Finance (Department of Economic Affairs) that the said goods are required for the execution of the said project and that the said project has duly been approved by the Government of India. (c) in case the said goods are intended to be supplied to a project financed (whether by a loan or a grant) by the World Bank, the Asian Development Bank or any internation .....

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ent of India, and (ii) if the said project has been approved by the Government of India for implementation by the Government of a State or a Union Territory, a certificate from-the executive head of the Project Implementing Authority and countersigned by the Principal Secretary or the Secretary (Finance), as the case may be, in the concerned State Government or the Union Territory, that the said goods are required for the execution of the said project, and that the said project has duly been app .....

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India, which has been so nominated with respect to a project, by the Government of India, in the Ministry of Finance (Department of Economic Affairs). ANNEXURE 1. United Nations Development Programme, 2. United Nations International Children's Fund, 3. Food and Agricultural Organisation, 4. International Labour Organisation, 5. World Health Organisation, 6. Nations Population Fund. 7. United Nations World Food Programme. 8. United Nations Industrial Development Organisation. Notification No. .....

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more particularly, paras 7 and 8, which reads as under: 7. Reiterating the contentions found in the show cause notice, learned Standing counsel appearing for the Revenue pointed out that the on the admitted fact that the machineries had not been entrusted to the contract implementing authority and that the supply of goods were to the Sub- Contractors leading to possible misuse of the goods for unintended purposes, no exception could be made to the imposition of duty and there-by reject the benef .....

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hineries 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 subcontractors, 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 sho .....

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essary in the public interest so to do, hereby exempts all goods falling under the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said goods) when supplied to the United Nations or an International organisation for their official use or supplied to the projects financed by the said United National or an international organisation and approved by the Government of India, from the whole of:- (i) the duty of excise leviable thereon under section 3 of the .....

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he same is dismissed. No costs. 6.1. Counsel for the respondent further contended that the decision of Madras High Court dated 20.06.2013 was carried to the Supreme Court where the SLP was dismissed by order dated 01.03.2016. There is another decision of Madras High Court in the case of Commissioner of Central Excise, Pondicherry Commissionerate Vs. Customs Excise & Service Tax Appellate Tribunal- (2016)55 GST 222 (Madras), where the same notification was considered in paras 10, 11 and 12, w .....

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ed by the Government of India. It is sufficient to extract the first portion of the Notification to appreciate this point. "In exercise of the powers conferred by subsection (1) of section 5A of the Central Excise and Salt Act, 1944 (1 of 1944), read with subsection (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 fal .....

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ternational Organization for their official use or (b) goods supplied to the projects financed by the United Nations or the International Organization and approved by the Government of India. 12. In other words, the supply made to the Organization indicated in the Notification for their official use as well as supply made to the projects financed by them, are both included within the purview of the Notification. It may be open, to the Department to contend, in some cases where the supply is made .....

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ecisions of Supreme court which reads as under: (b) In the case of Commissioner of Customs, Kolkata V/s Rupa and Co. Ltd reported in 2004(170) ELT 129 (S.C.) Hon'ble Apex Court has observed that An exemption Notification has to be constrained strictly but that does not mean that the object and purpose of the Notification is to be lost sight of and the wording used therein ignored. Where wording of the Notification are clear and unambiguous they have to be given effect to. Exemption cannot be .....

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s Commissioner of Central Excise, New Delhi reported in 2004(171) ELT 433 Hon'ble Apex Court has observed that 'If the statutory language is unambiguous then that must be given effect to. The legislature is deemed to intend and mean what it says. The need for interpretation arises only when the words used in the statue are on their own terms ambivalent and don not manifest that intention of the legislature. (g) In the case of Johnson & Johnson Ltd. V/s CCE, Aurangabad reported in 199 .....

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in the country and once this intention is clear from the subsequent notifications issued under Section 5A of the Act in 1995, we do not see any reason why we should take a narrow view to confine the two items produced by the appellants to Entry 3005.90 rather than place them in the wider connotation of surgical appliances in Entry 90.18 of Chapter 90. 9. The Commissioner (Appeals) has observed as under: 10. In view of above discussion, I observe that in the said notification there is no specific .....

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implementing Authority and countersigned by Principal Secretary or the Secretary (Finance) in the concerned State Govt., that the said goods are required for the execution of the said project. This is not a case where the goods have not been supplied to the specified project or diverted. There is no allegation on the Appellant about non supply of the goods for the specified project. Thus, I find that, the appellant has submitted a clarified later on by their letter dated 2.5.2005, and they suppl .....

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