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TMI Blog2023 (5) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1944. 3. I impose penalty of Rs.1,02,22,129/- (One Crore Two Lakh Twenty Two Thousand One Hundred Twenty Nine) under Section 11AC of the Central Excised Act, 1944. However, the Penalty will be reduced to 25% of the above amount if the assessee pays the duty determined along with interest within 30 days of receipt of this order. The reduced penalty 25% of the amount of duty so determined is available to the assessee only if the 25% of the penalty is also paid within the period of thirty days of receipt of this order. Otherwise the penalty imposed under Section 11AC, equal to the duty amount will remain." 2.1 Appellant during the period from 01.07.2006 to 30.06.2011 had cleared goods by availing exemption Notification No. 108/95-CE dated 28.08.1995 from time to time. On scrutiny of the records of the appellant, it was observed that the appellant was not directly selling the goods to Project Implementation Authority but clearing to the contractor or subcontractor of PIA. In terms of the said notification, contractor or sub-contractor were not eligible to procure goods duty free. It was further observed that they had cleared goods on the strength of the certificates as requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l & Co. [2010 (260) ELT 487 (SC)] Extended period of limitation cannot be invoked since there is no suppression of facts. 3.3 Learned AR reiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Following findings have been recorded in the impugned order:- "24. I have gone through the facts of the case, submissions made by the assessee in their written reply and at the time of personal hearing. The facts of the case in brief are that, the assessee manufactured and supplied Bitumen Emulsion and Modified Bitumen for the Road Construction Projects of many states such as Madhya Pradesh, Chhattisgarh and Rajasthan. They have availed the benefit of exemption Notification No. 108/95 -CE dated 28.8.95. As per the notification cited above, full exemption is provided to goods supplied to the projects funded by UN or projects funded by specified International Organizations. In the SCN, it is alleged that the exemption is applicable only when the goods are supplied directly to the Project Implementation Authority and the exemption is not available when the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the said project has duly been approved by the Government of India for implementation by the concerned State Government." 27. In this case, the assessee supplied Bitumen Emulsion to the projects implemented by Madhya Pradesh Road Development Corporation and Modified Bitumen to the Road Development project of Rajasthan. Similarly they have supplied the Bitumen and Bitumen Emulsion etc. to Chhattisgarh Government Projects. The certificates issued by the Project Development Authorities of the respective states clearly certify that the goods supplied by the assessee will be used for the intended purpose i.e. the project financed by the Asian Development Bank or the specified International Organisation. The certificates are countersigned by the Principal Secretary of Public Works Department of the State of Madhya Pradesh, Chhattisgarh and Rajasthan, who are the implementing authorities of the said projects. Hence, I find that the goods supplied by the assessee clearly falls within Sr. No. c(ii) of the Notification No. 108/05 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow the appeal." 28. I also find that in assessee's own case, Hon'ble Ahmedabad Tribunal has allowed the benefit of Notification No. 108/95-CE dated 28.08.95. The relevant portion of the decision is reproduced below: Hindustan Colas Ltd vs. Commissioner- 2007(219)ELT 430(Tribunal-Ahmd.) "We have carefully considered the rival submission. The followings are not in dispute: The project is funded by the World Bank, the projects are divided into various contract for different types of work and assigned to different contractors; the project implementing authority has been approved by the World Bank and by the Govt. of India: the goods cleared by the appellants have been used for the project. The notification, no doubt, envisages production of the certificate from the project implementing authority and the purpose of the certificate is only to ensure that the material procured duty free are required and used for the said project. It should be understood that the appellants may supply goods not only for the project, which is eligible for exemption but also to others who are not availing the said exemption. There s no rational to issue the certificate in the name of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods involved is not specifically mentioned in the order. Hence, I agree with the claim of the assessee that the case laws cited are not relevant to their case. In view of the discussions and the decisions cited above, I find that the assessee has fulfilled the conditions of the notification No. 108/95 and hence they are eligible for the benefit of exemption provided in the said Notification. 31. To summarise the above findings, it is observed that there is no dispute in this case that the projects have been funded by the World Bank or other specified International Organizations. Their Project Implementation Authorities have certified that the goods procured without payment of duty are required for the project. The goods supplied by the assessee to the Contractors have actually been used for the said projects. There is no dispute on these facts. I also find that the Notification No. 108/95 does not stipulate that the goods have to be supplied only to the Project Implementing Authority directly to avail the exemption. The Tribunal decisions and Board Circular cited above also supports their view. As long as the goods are used in the said project the benefit of the notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks reviewed administrative acceptance. The said certificate was issued by the Chhattishgarh Government on a proposal brought by a note, specifically in relation to the duties as mentioned in the loan agreement relating to the project work. It is not related with the executive duties of the Principal Secretary or the Secretary (Finance) of the State. There is no specific authorization to the Project Director to extend the validity of the Certificates which was issued by the Principal Secretary earlier. Hence, it can be construed that the extension granted by the Project Director in extending the validity is not in conformity with the condition c(ii) of the Notification No.108/95- CE dated 28.08.1995 as amended. I, therefore find that in respect of the goods cleared by the assessee on the strength of the certificates (mentioned in Annexure B valued at Rs.7,08,52,170.00 involving duty of Rs. 1,02,22,129.00), whose validity has been extended by the Project Director, and such extension was not countersigned by the Principal Secretary or the Secretary (Finance) of the Chhattisgarh Government, have contravened of the provisions of the Central Excise Act, 1944, the Central Excise Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t) by such an organisation, a certificate from such an organisation 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; or (ii) supplied to a project that has been approved by the Government of India and financed (whether by a loan or a grant) by an international organisation listed 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 other international organisation, and (i) if the said project has been approved by the Government of India, a certificate from the executive head of the Project Implementing Authority and countersigned by an officer not below the rank of a Joint Secretary to the Government of India, in the concerned Line Ministry in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 (SC)] wherein it has been held as under:- "10. It is by now a settled law that the exemption notification has to be construed strictly and there has to be strict interpretation of the same by reading the same literally. In this connection reference can be made to the decision of this Court in Collector of Customs (Preventive), Amritsar v. Malwa Industries Limited reported at (2009) 12 SCC 735 = 2009 (235) E.L.T. 214 (S.C.) as also to the decision in Kartar Rolling Mills v. Commissioner of Central Excise, New Delhi reported at (2006) 4 SCC 772 = 2006 (197) E.L.T. 151 (S.C.) = 2008 (9) S.T.R. 307 (S.C.) wherein also it was held by this Court that finding recorded by the Tribunal and the two authorities below are findings of fact and such findings in absence of evidence on record to the contrary is not subject to interference. In order to get benefit of such notification granting exemption the claimant has to show that he satisfies the eligibility criteria. Since the Tribunal and the authorities below have categorically held that the appellant does not satisfy the eligibility criteria on the basis of the evidence on record, therefore, we hold that the said exemption Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive the utmost attention of the authorities by being liberal in passing benefits of such notifications. Any attempt to deny such benefits on technical grounds would contribute to the alarming growth in loss of vision, which no progressive society can afford. Keeping this in mind, the solitary ground that led to the denial of the benefit under the said notification was that the certificate was not countersigned by an officer of stipulated rank viz., not below the rank of a Joint Secretary to the Govt. of India. In the instant case, the said certificate had been signed by the Under Secretary to the Govt. of India. There is understandably difference between an unsigned certificate and a certificate which was signed but not countersigned. Taking into the account the well settled principle that procedural infirmities such as the present one should not be allowed to the extent of denying the very benefit offered by the above said notification which is beneficial in nature, and only granting, rather than non-granting, will be in consonance with the legislative intent. 11. The case laws relied by the AR are inapplicable here as the goods in the case of Hari Chand Shri Gopal were cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X
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