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2016 (11) TMI 1207 - CESTAT MUMBAI

2016 (11) TMI 1207 - CESTAT MUMBAI - 2016 (338) E.L.T. 449 (Tri. - LB) - Denial of the benefit of N/N. 6/2006, dated 1-3-2006 - anchor rings and load spreading plates - Held that: - the anchor rings and the load spreading plates are specifically designed for the purpose of attaching the tower to the ground by providing necessary bolts for the same. The anchor rings and the load spreading plates are an extension of the tower, though the same is fixed to the foundation first and later attached to .....

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Gajendra Jain, Advocate, for the Appellant. Shri V.K. Agarwal, Addl. Commissioner (AR), for the Respondent. ORDER [Order per : Raju, Member (T)]. - Tribunal vide Order No. A/791/14/EB/C-II, dated 25-9-2014 [2015 (325) E.L.T. A110 (Tri. - Mum.)] deliberated on the appeals filed by M/s. Rakhoh Enterprises and M/s. Gemini Instratech Pvt. Ltd. It rejected the appeal of Rakhoh Enterprises and referred the matter of M/s. Gemini Instratech Pvt. Ltd. to Larger Bench. 1.1 In the first appeal M/s. Ra .....

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e second appeal relates to M/s. Gemini Instratech Pvt. Ltd., who were denied benefit of exemption under Notification No. 6/2006, dated 1-3-2006 on the goods namely, wind mill doors, manufactured by them and cleared during the period April, 2008 - September, 2008. The Commissioner (Appeals) upheld the order of Additional Commissioner in which demand of ₹ 10,84,298/- was confirmed along with penalty of ₹ 50,000/- under Rule 25 of the Central Excise Rules and appropriate interest was or .....

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isallowed the benefit of Notification No. 6/2006-C.E., dated 1-3-2006 to Anchor Rings and Load Spreading Plates (LSP). In the same order in respect of M/s. Gemini Instratech Pvt. Ltd. for the wind mill doors, the matter was referred for constitution of a Larger Bench for determination of following questions : Whether a manufacturer is entitled to claim the benefit and exemption from Central Excise duty on wind mill doors under Notification No. 6/2006, dated 1-3-2006 which grants exemption to win .....

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lowing throughout the order-up to the discussion on the facts pertaining to the Petitioner s case. We do not find that there was any feature or aspect of the Petitioner s case which demonstrated and proved it to be a distinct or a different matter. No light has been thrown by the Tribunal or by the Revenue before us nor any distinguishing features, save and except noted above by us are appearing from the record. The Tribunal rather than deciding the issue and construing and interpreting th Exemp .....

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the Tribunal should have formulated the same question even in the case of the Petitioner s Appeal and referred all three matters to be decided and by a larger Bench. 12. This mistake and which was apparent could have been rectified in the rectification proceedings, but the Tribunal failed to exercise its powers and the jurisdiction vested in it by law. For these reasons, we allow this writ petition. We quash and set aside the Tribunal s order dated 25th September, 2015 and direct that in t .....

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en. Equally, it will be open for the Petitioner to point out to the Tribunal then that its earlier order and some of the findings therein were patently erroneous and hence it should ignore its initial order as well as the order passed on the Rectification of Mistakes Application. All contentions in that regard are kept open. The Petition is allowed accordingly. No order as to costs. 13. We are informed that the Larger Bench is assembling for decision on the question and issue and holding it .....

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vt. Ltd. are being taken up for disposal. 4. In the matter relating to M/s. Gemini Instratech Pvt. Ltd., the question of law framed by the Tribunal was 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, dated 1-3-2006 which grants exemption to wind operated electricity generator, its components and parts thereof including rotor wind turbine controller . 4.1 The learned Counsel for .....

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he learned AR relies on the impugned order. 4.3 We have gone through the rival submissions. We find that the issue has been settled by the Hon ble Supreme Court in its order in the case of the appellant themselves as reported in 2015 (323) E.L.T. 220 (S.C.). The Hon ble Apex Court has observed as follows : 5. The question which falls for consideration in this appeal is as to whether windmill doors and electrical boxes are components and/or parts of wind operated electricity generators. .....

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nts or parts of the electricity generators. It is not in dispute that as far as windmill doors or tower doors are concerned, it is a safety device which is used as security for high voltage equipments fitted inside the tower, preventing unauthorised access and preventing entries of reptiles, insects, etc., inside the tower. This, according to us, would be sufficient to make it part of the electricity generator. We further find that this was so held by the Commissioner of Central Excise and Custo .....

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out by the Department. In view of the above, we answer the question referred to Larger Bench in the case of Gemini Instratech Pvt. Ltd. in affirmative and hold that windmill doors are entitled to exemption Notification No. 6/2006, dated 1-3-2006, as parts of windmills. 5. The Hon ble High Court has referred the matter relating to M/s. Rakhoh Enterprises to the Larger Bench. The simple issue which needs to be decided in the case is if the benefit of Notification No. 06/2006, dated 1-3-2006 .....

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wind operated electricity generator is tall and heavy structure and needs a proper support at the base for proper operation. He pointed out that the structure can be over 100 meters above and is subjected much pressure of wind and therefore, is subjected to horizontal movement. He pointed out that in view of the above, the same needs to be properly anchored to the earth to make it stable. He pointed out that the anchor ring and load spreading plates are specially designed in such a manner that t .....

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bolts of the load spreading plates and the tower are thereafter attached by the bolts. He produces the photographs of the load spreading plates and anchor rings before and after erection of wind operated electricity generator. 5.2 The learned AR argued that the anchor rings and load spreading plates are not parts of the tower and are parts of the foundation of the tower. He argued that Circular No. 1008/15/2015, dated 20-10-2015 covers only the following items : 2. Ministry of New and .....

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. (iv) Wind turbine controller, nacelle controller and control cables. He pointed out that the foundation is not covered as part of the wind operated electricity generator in the said circular. He argued that views of Ministry of New and Renewable Energy should be taken before arriving at any conclusion in this regard, in terms of Para 5 of the Circular dated 20-10-2015 which reads as under : For any clarification regarding parts and component of WOEG, not covered in para 3 above, opinion of Min .....

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