TMI Blog2020 (5) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... package into individual components to determine their classification. While the goods in the form in which it is cleared was with the SPV Panel whereas the sample was without the SPV Panel. Further the opinion clearly states that the batteries of the lamp can be charged with the solar power normally but in emergency or non availability of solar power the same can be re-charged by using the normal power source with a suitable adapter. For classifying the one of two lamps in the package revenue has relied on the fact that it can be charged with the normal power supply using suitable adaptors. While doing so they ignore the fact that the technical opinion given by the IIT Professor clearly states that the normal mode of charging the batteries in the lamps will be solar power only - Further it is not even the case of revenue that the package was being cleared with a suitable adapter to charge the batteries using normal power supply. Thus, the goods in the form and manner in which they are cleared for sale to consumers are nothing but Solar Power Generating System or Solar Photovoltaic Lantern and the exemption claimed by the appellants in respect of same under Sl No 237 of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No 143, Hissa No 1172, Vadagaon- Dhayari, Pune Sinhagad Road, Pune 411041 under Section 11AC of CEA, 1944. However if M/s Aura Solar Products Pvt Ltd. pay the amount of demand, interest as well as penalty within 30 days of communication of this order, the penalty shall be reduced to 25% i.e. ₹ 9,22,499/- (Rupees Nine Lakhs Twenty Two Thousand Four Hundred and Ninety Nine only). 5. I do not impose any penalty upon M/s Hypone Industries, Gate No 238, Hissa No 7, Village Dhangwadi, Tal Bhor, Dist Pune under Rule 25 of CER, 2002. 6. I impose a penalty of ₹ 5,00,000/- (Rupees Five Lakhs only) upon M/s RMP Infotec Pvt Ltd, Old No 183 (New No 300), 1st Floor, Thambu Chetty Street, Parry's corner, Chennai. 7. I impose a penalty of ₹ 1,00,000/- (Rupees One Lakh only) each upon Shri Babasaheb Baburao Jadhav, Chairman of M/s Aura Solar Products Pvt Ltd and Shri Rahul Premchand Nahar, Director of M/s Aura Solar Products Pvt Ltd under Rule 26 of the CER, 2002. 2.1 Acting on the intelligence indicating that M/s Aura was engaged in the manufacture of electric storage batteries and solar power generating systems and parts thereof; and they have floate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Notification, that wherever as envisaged in the relevant Central Excise Notification, that wherever an extra portable lamp has been supplied in a system as a solar lamp, such extar lamp was not entitled to the exemption from payment of CE duty. 2.4 It was also alleged that- i. M/s Aura have cleared portable lamp (in sets of two lamps) by projecting the same as solar lantern in their invoices and in other relevant documents to fraudulently avail the exemption under Notification No 6/2002-CE as amended as applicable to Non conventional energy devices. Thus by removing set of two lanterns along with one PV Module and Photovoltaic system, M/s Aura supplied an extra portable lantern under the guise of whole set constituting a photovoltaic system; and in the said set, one lamp did not appear to be entitled for the said exemption. ii. M/s Aura and M/s Hypone, in connivance with M/s RMP, have suppressed and mis stated the facts, manipulated the documents and accounts and contravened the provisions of CEA, 1944 and the rules framed there under with intent to evade payment of CE duty on the portable lanterns so manufactured and cleared by them. As such, proviso to sub se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been cleared by them. Just because of technical innovation they are having solar PV Module with facility to charge two lamps simultaneously, it does not lose the character of being a solar lantern; Other entries in the notification also suggest that exemption has been granted to all devices used with solar energy; Exemption cannot be denied just for the reason that the lamp can be charged with the help of any other alternative source of energy; Reliance placed on the report of IIT and CBEC Letter is misplaced as the sample produced was box containing two lamps whereas they sell a package containing not only two lamps but with a solar PV module capable of charging both the lamps simultaneously; In matter of classifications the burden is on revenue to establish its case as has been held in following decisions HPL Chemicals Ltd [2006 (107) ELT 324 (SC)] Dilip Kumar Co [2018 (361) ELT 577 (SC)] It is also settled law that once the goods are found to satisfy the conditions of exemption notification then they cannot be excluded therefrom by construing the notification narrowly- Bombay Chemicals Pvt Ltd [1995 (77) ELT 3 (SC)] Malwa Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in parallel to one solar photovoltaic panel should be allowed to full exemption to both or should the exemption be restricted to one lamp only. In interpreting exemption notification the eligibility criteria is always construed strictly. The general practice in trade of one lamp connected to one Solar PV Panel has to be considered, for considering the eligibility of the equipment for exemption benefit. The second lamp though connected in parallel is an added lamp with intention to avail exemption by a non regular trade practice and has to be considered as a colorable device. It therefore needs to be rejected . Further, it is possible theoretically to connect even many more than two lamps in parallel to one solar PV Panel. If the logic of the noticee is accepted, then manufacturers of lamps can clear any number of lamps by connecting it all in parallel to one Solar PV Panel, and claim exemption for all lamps. This would be an absurd situation. Therefore the interpretation of this nature needs to be rejected. 48. As far as tailor made assembly of solar panel is concerned, no doubt, it generates power from solar energy (i.e. converts solar energy into electrical energy) and act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... package which has two lamps as far as the extra lamp is concerned, cannot qualify as a solar system or solar lantern. The noticee have thus misclassified the second lamp to take the benefit of the exemption by manipulating the actual facts. 4.3 From the facts as determined and recorded by the adjudicating authority it is clearly evident that the manner in which the goods were being cleared by the appellant was in a package comprising of two lanterns along with a solar photovoltaic panel. SPV Panel having capacity and provisions to charge both the lanterns simultaneously. The packaging and the manner of marketing the product also suggest that both the lamps in the package are marketed as solar lanterns. It is an admitted fact and a fact not in dispute that appellants do not sell the single lantern individually or separately. That being so revenue has no jurisdiction to vivisect the package and classify one lantern separately. The classification of the goods need to be determined in the form and manner in which the same is cleared and not by unbundling/ vivisecting the package into individual components to determine their classification. 4.4 We do not find support in the tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if a lamp (given for testing) is sold as such, then it cannot be called a solar lamp or lantern. 4.5 From the opinion as reproduced above it's quite evident that it is not in respect of the package in the manner in which it is cleared. From the facts as narrated above it is quite evident that while the goods in the form in which it is cleared was with the SPV Panel whereas the sample was without the SPV Panel. Further the opinion clearly states that the batteries of the lamp can be charged with the solar power normally but in emergency or non availability of solar power the same can be re-charged by using the normal power source with a suitable adapter. For classifying the one of two lamps in the package revenue has relied on the fact that it can be charged with the normal power supply using suitable adaptors. While doing so they ignore the fact that the technical opinion given by the IIT Professor clearly states that the normal mode of charging the batteries in the lamps will be solar power only. Further it is not even the case of revenue that the package was being cleared with a suitable adapter to charge the batteries using normal power supply. In our view the technic ..... 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