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2017 (4) TMI 789 - CESTAT ALLAHABAD

2017 (4) TMI 789 - CESTAT ALLAHABAD - TMI - N/N. 108/95-CE dated 28.08.1995 - refund - duty paid diesel - construction contract - who is entitled to the exemption, manufacturer, contractor or buyer of the goods? - Held that: - Revenue have failed to read the scheme of the Central Excise Act as a whole and accordingly have reached to erroneous conclusion. The learned Commissioner (Appeals) have rightly held that u/s 11 AB read with explanation clause (e) read with N/N. 108/95-CE read with N/N. 17 .....

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pondent-assessee, who have supplied goods (duty paid diesel) to the contractor for construction and strengthening of existing two-lane section on NH-2 in Uttar Pradesh, under third National Highway- World Bank Project (an International Organization of UN) had procured and supplied diesel-HSD, as duty free diesel was not available from the warehouse of IOC due to Notification No.17/2004-CE (withdrawal of duty-free warehousing facility) is entitled to refund under Notification No.108/95-CE dated 2 .....

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ry, Russia and the appellant was appointed by M/s Controdorstory, Russia as their identified supplier for supply of input materials, incidental to the execution of the project. In terms of Notfn. No.108/95, the Certificate (for duty free procurent) dated 26.08.2002 was issued by National Highways Authority of India (NHAI) and countersigned by Director General (Road Div.) & Special Secretary, Ministry of Road Transport & Highways, Govt. of India. The appellant had been appointed by M/s Co .....

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nt for completion of said project on payment of Central Excise duty amounting to ₹ 17,86,782/- and ₹ 17,81,902/- from IOC Ltd., Panki Terminal, Kanpur which was otherwise exempt from whole of duty of Excise by virtue of Notfn. No.108/95-CE dated 28.08.1995. Accordingly, the appellants had filed the refund claims on such purchase of 1148 KL and 576 KL of Diesel. On 12.09.2005 and 25.09.2006 for refund of Central Excise duty amounting to ₹ 17,86,782/- & ₹ 17,81,902/- pa .....

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tion No.17/2004-CE(NT). Further, the respondent did not produce any evidence, document or otherwise, which could give any evidence that they have not collected the duty element from the principal. Thus, two separate show-cause-notices were issued for the two refund claims and the same were adjudicated vide common O-I-O- dated 17.10.2007 and the refund claim was rejected. Being aggrieved, the appellant preferred appeal before Ld. Commissioner (Appeals). 4. The grounds urged before the learned Com .....

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purchased from their records and further that the element of which have not been passed over to the contractor or any other person as per affidavits and declarations made by the principal contractor and thus, there is no unjust enrichment, and the goods having suffered the duty of excise, the appellant being the ultimate customer/consumer, is established from the exemption certificates, granted to the respondent. Further urged that the respondent had tendered the exemption certificate issued by .....

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ating that in view of the subsequent Notification No.17/2004-CE, the respondent had to procure duty paid petroleum products/diesel in spite of being in possession of the exemption certificate as required under Notification 108/95 and further found that the appellant had regarding consumption of diesel procured, for use in specified project and non-passing of duty incidence had produced affidavit, declaration of principal contractor duty supported by a certificate issued by the Chartered Accounta .....

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ty paid goods for supply of the same to a project funded by the UN or an International Organization and approved by the Government of India, whereas, the said exemption notification is meant only for the manufacturers of goods, supplying the same to a project funded by the UN or an International Operation and approved by the Government of India. Further, as per the terms of the said notification, the manufacture of goods should submit before the clearance of the goods, to the jurisdictional auth .....

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