TMI Blog2023 (6) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Notification retrospectively and demanded duty from the appellants alleging that after completion of the project, if the 9 nos. tippers which were used in the completion of project, later if withdrawn, even after completion of the project, they would not be eligible to the benefit of the said Notification. The issue of retrospective applicability of Explanation-2 to the Notification was considered by this Tribunal in the case of L T Komatsu Ltd. [ 2016 (7) TMI 290 - CESTAT BANGALORE ] holding amendment to the original Notification No.108/95-CE dated 28.8.1995 made by Notification No.13/2008-CE dated 1.3.2008 would have prospective operation and the demand against the appellants can be sustained only for one year period which is within the period of limitation. Time Limitation - HELD THAT:- The appellant availed the exemption under Notification No.108/95-CE dated 28.8.95 on the basis of Certificates issued by the Project Authority from time to time and the clearance of tippers by availing the benefit of Notification declared in their monthly ER-1 returns, hence no fact was suppressed from the knowledge of the department - It is held by the Hon ble Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deny the benefit of Notification No.108/95-CE dated 28.8.95 as amended on the ground that the benefit of the said Notification would be available only if the goods are part of the project on permanent basis and would not be available if the said goods are withdrawn by the contractor on completion of the project and used for other projects. She has submitted that this issue has been considered by this Tribunal in the case of L T Komatsu Ltd. Vs. CCE ST, Bangalore-IV: 2016 (34) ELT 632 (Tri.-Bang.), latter confirmed by Hon ble Supreme Court as reported at 2021 (376) ELT A105 (SC) and also by Chennai Bench of this Tribunal in the case of Schwing Stetter (I) Pvt. Ltd. Vs. CCE ? ST, LTU, Chennai: 2018 (362) ELT 653 (Tri.-Chennai). 3.1 It is her contention that during the relevant period, the Explanation-2 which was inserted by Notification No.13/2008-CE dated 1.3.2008 was not in existence, hence its application to clearances retrospectively cannot be sustained as held by the Tribunal in the aforesaid judgments. The conditions prescribed in the said Notification had been fulfilled as the goods cleared by the appellant to the said contractor were used in the said project and Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Commissioner of Central Excise having jurisdiction over his factory, a certificate from the United Nations or an international organisation that the said goods are intended for official use by the said United Nations or the said international organisation or are to be supplied to a project financed by the said United Nations or the said international organisation and the said project has duly been approved by the Government of India. Explanation. - For the purpose of this notification, international organisation means an international organisation to which the Central Government has declared, in pursuance of section 3 of the United Nations (Privileges and Immunities) Act, 1947 (46 of 1947), that the provisions of the Schedule to the said Act shall apply. 8. In accordance with the said Notification, on the basis of the project certificate issued mentioning the name of the contractor M/s Ketan Constructions Ltd., undisputedly 9 Nos. of tippers were cleared by the Appellant to the said contractor to be used in a project funded by the World Bank. After completion of the said project, on enquiry from the contractor about the use of said Tippers in other suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be made effective retrospectively. In this regard, the decision of the Hon ble Supreme Court in the case of UOI vs. Martin Lottery Agencies Ltd. (supra) is quoted below : 35. Reverting to the decision of a Kerala High Court in CIT v. S.R. Patton [(1992) 193 ITR 49 (Ker.)] wherein Gujarat High Court s judgment was followed, this Court noticed that explanation was not held to be a declaratory one but thereby the scope of Section 9(1)(ii) of the Act was widened. The law in the aforementioned premise was laid down as under: 17. As was affirmed by this Court in Goslino Mario (supra), a cardinal principle of the tax law is that the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. [See also: Reliance Jute and Industries v. CIT [(1980) 1 SCC 139]. An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section (See: Sonia Bhatia v. State of U.P. [(1981) 2 SCC 585 at 598]. If it is in its nature clarificatory then the Explanation must be read into the main provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.3.2008 would have prospective operation and the demand against the appellants can be sustained only for one year period which is within the period of limitation and the penalty imposed by the impugned order deserves to be set aside. 11. On the issue of limitation, we find that the appellant availed the exemption under Notification No.108/95-CE dated 28.8.95 on the basis of Certificates issued by the Project Authority from time to time and the clearance of tippers by availing the benefit of Notification declared in their monthly ER-1 returns, hence no fact was suppressed from the knowledge of the department. It is held by the Hon ble Supreme Court in J.K. SPINNING AND WEAVING MILLS LTD. AND ANOTHER Vs. UNION OF INDIA AND OTHERS 1987 (32) ELT 234 (SC) and followed in a series of judgments that extended period of limitation cannot be invoked in demanding duty on the basis of applying an amendment retrospectively, which is squarely applicable to the facts of the present case. 12. In view of the above findings, the impugned order is not sustainable, consequently, the same is set aside and the appeal is allowed with consequential relief, if any, as per law. ( Operative port ..... X X X X Extracts X X X X X X X X Extracts X X X X
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