9911796707
TMI Blog2023 (7) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... lades / towers and foundation mounting parts etc. under Sl.No.224 (2 & 3) along with condition No.35 and Sl.No.362 (2) & (3) along with condition No.45 of the Customs Notification No.21/2002-Cus. dt. 01.03.2002 and 12/2012-Cus. dt. 17.3.2012 respectively. These conditions stipulate that the importer at the time of importation has to (a) furnish a certificate to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, from an officer not below the rank of Deputy Secretary to the Government of India in the Ministry of Non-Conventional Energy Sources recommending the grant of this exemption and in the case of the goods at (2) to (5), the said officer certifies that the goods are required for the specified purposes; and (b) furnish an undertaking to the said Deputy Commissioner or Assistant Commissioner to the effect that, - (i) in the case of wind operated electricity generators upto 30KW or wind operated battery chargers upto 30 KW, he shall not sell or otherwise dispose off, in any manner, such generators or chargers for a period of two years from the date of importation; (ii) in the case of other goods specified at (2) to (5), he shall us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents were entered by the respondent with its customers (a) for supply of WOEG parts (b) for erection and commissioning of the WOEG equipment. The respondent imported blades for manufacture of WOEG and claimed the benefit of BCD exemption under the notification. The benefit under the said exemption notifications is available to blades only if the conditions are fulfilled by the importer. The conditions are (1) that iimporter should furnish a certificate issued by the specified officer of the Ministry of Non-Conventional Energy Sources recommending the grant of exemption and certifies that the goods are required for the specified purpose and (2) that importer should furnish an undertaking to the effect that he shall use them for the specified purpose. 6. Ld. Counsel submitted that the respondent has furnished the Ministry's recommendation as well as the undertaking required as per the notification. After the import of goods, in terms of the agreements entered with customers, the blades were supplied to the customers along with other parts of WOEG and was assembled at the customer's site by the respondent thereby fulfilling the conditions of the exemption notification. Merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d operated electricity or (b) parts, sub-parts of such blades 5% - 45 Condition No. Condition 45 If the importer at the time of importation,- (a) furnishes in all cases a certificate to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, from an officer not below the rank of a Deputy Secretary to the government of India in the ministry of Non-Conventional Energy Sources recommending the grant of this exemption and in the case of the goods at (2) to (5), the said officer certifies that the goods are required for the specified purposes; and officer certifies that the goods are required for the specified purposes; and (b) furnishes an undertaking to the said Deputy Commissioner or Assistant Commissioner to the effect that,- (i) in the case of wind operated electricity generators upto 30 KW or wind operated battery chargers upto 30 KW, he shall not sell or otherwise dispose off, in any manner, such generators or chargers for a period of two years from the date of importation. (ii) in the case of other goods specified at (2) to (5), he shall use them for the specified purpose; and (iii) in case he fails to comply with sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, such generators or chargers for a period of two years from the date of importation". They rightly argued that ere are no such restrictions in respect of WOEG. With capacity beyond 30 KW. I find considerable force in the above argument of the importer and accordingly concur. 21. From the foregoing, I find that the importer has fulfilled all stipulated conditions completely and there is no merit in the show cause notice. " 12. The very same issue was considered by the jurisdictional High Court in the case of Nordex India Pvt. Ltd. (supra) wherein the Hon'ble High Court has considered the practical difficulties of the importer to transport blades from the port to the factory and thereafter to the customer's site. Relevant para of the judgment reads as under : "8. As far as the present case is concerned, the issue involves interpretation of the condition relating to "use of the goods for specified purpose". The petitioner submitted necessary certificate from the Ministry of Non-Conventional Energy, Government of India, and gave an undertaking that they would use the imported goods for the "specified purpose". Thereafter, the petitioner availed concession/exemption by giving an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1008/15/2015-CX, dated 20-10-2015, wherein it is stated that Wind Turbine is not complete without Rotor Blades and Rotor Blades cannot be used for any other purpose. A condition was stipulated in the notification for its use in the manufacture of Windmill and to prevent it for export. The point of sale of the Rotor Blade is not relevant for the purpose of availing concessional rate of duty and it is not contemplated indirectly in the Exemption Notification No. 12/2012-Cus., dated 17-3-2012. ... .... .... 28. Considering the rival submissions and on perusal of the materials produced by both the petitioner and respondent, it is seen that in the impugned order, the respondent admits that the petitioner is engaged in the business of manufacture and installation of Wind Operated Electricity Generators, for which, they have imported Rotor Blades - Parts of Wind Operated Electricity Generators and filed three bills of entry through their Customs Broker, by availing Basic Customs Duty [BCD] concession under Sl. No. 362(3) of the Customs Notification No. 12/2012-Cus., dated 17-3-2012 (read with Condition No. 45) and exemption from additional duty of customs under Sl. No. 14-C of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 of Notification No. 12/2012-Cus., dated 17-3-2012, is not followed for the reason that the petitioner/importer, shall not use them for specific purpose. In this case, it has been used for the specific purpose in the Windmill. It is only the word "he" is stressed against the petitioner. This cannot be looked into in isolation and it has to be considered as a whole. The petitioner had been awarded Turnkey project and there were two contracts and one of the contracts is for erection, installation and commission. This needs expertise. The petitioner having expertise applied with the Ministry of New and Renewable Energy, got approval, and then imported Rotor Blades and thereafter, transported the same, erected and commissioned the same at the customer's site. It is a known fact that the Windmill has to be necessarily erected only in the site. It cannot be assembled in a factory and thereafter, moved to the site, which is impracticable. The imported Rotor Blades, thus, need no customization and mechanization. Hence, by raising an invoice in the name of his client namely, Sun Photo Voltaic Energy Private Limited after import and thereafter, transporting the same to the customer's site ..... 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