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TMI Blog2008 (9) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... es would be issued from the appropriate officers of the project and counter signed by the Principal Secretary. There is no dispute that such duty exemption certificate issued by the Technical Director and empowered officers of MSEB countersigned by the Principal Secretary to the Government of Maharashtra were produced on record certifying that the said equipments/materials are intended for use by MSEB in above projects which is financed by Japan Bank of International Cooperation. The certificate further mentioned that the same is being issued as per requirement under the Notification No. 108/95-C.E., dated 28-8-1995. Identical certificates were also issued by WBSEB duly signed by Chief Engineer arid empowered officer and countersigned by Secretary, the Department of Power, Govt. of West Bengal. Based upon the said certificates, appellants availed the benefit of the notification, after duly filing classification lists. RT-12 returns were also filed, which were assessed by the appropriate officers. 2. However, proceedings were initiated against the appellants by way of issuance of show cause notice dated 29-4-2002 alleging that Japan Bank for International Cooperation is not an inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Tribunal observed that inasmuch as the benefit was being availed by the appellants on the basis of certificates issued by the project authorities, the error was on the part of the certificate issuing authorities and not on the part of the assessees. The assessee merely transferred the benefit of lower taxation to the project authorities. In the case of M/s. Bharat Heavy Electricals Ltd., we find that the benefit was availed by that appellant on the basis of the same certificate dated 24-1-2001 for supply of goods to M/s. West Bengal Electricity Board and as such the facts in the present case are not only identical but same. In the case of M/s. Jyoti Structures Ltd., Tribunal observed that the Revenue authorities at the relevant time never examined the status of M/s. Japan Bank and the appellant company having acted bona fide on the basis of the certificates issued by the project implementing authorities, cannot be blamed by observing that they should have verified the status of the financing organization. Inasmuch as in all these cases, it has been held that the demand raised on identical grounds was barred by limitation, we see no reasons to take a different view and it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said goods.(emphasis provided) from the executive head of the Project Implementing Authority and counter signed by the Principle Secretary or the Secretary (Finance) in the concerned state government that the said goods are required for the execution of the project and that the said project has duly been approved by the Govt. of India for implementation by the concerned state government. 10. In this case, the certificate was issued by the Project Implementing Authority on 24-1-2001/2-2-2001. The last paragraph of the certificate is important and hence is reproduced below:- "This certificate is being issued in pursuance of the Government of India (Ministry of Finance, Department of Revenue) Notification No.108/95-C.E., dated 28-8-1995 as amended by Notifications No. 7/98-C.E., dated 2-6-1998; No. 33/98-C.E., dated 13-10-1998; No. 4/99-C.E., dated 11-2-1999 and No. 40/99-CE., dated 2-11-1999. Excise duty exemption in respect of the above referred supplies under Annexure, I, II & III enclosed, may please be allowed. (emphasis added)" 11. In my opinion the certificate is correctly worded in terms of the notification and it is in the form of a request and apparently the issuing au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of M/s. Jyoti Structures Ltd., there is a clear observation by the Tribunal in para 4 that "the said certificate was duly placed before the central excise authorities and the benefit of notification was availed with the consent and knowledge of the authorities." That is not the case in the present appeal. Therefore the judgment of the Tribunal in the case of M/s. Jyoti Structures Ltd. is not applicable. The other two judgments cited by the appellants have followed the judgment in M/s. Jyoti Structures Ltd.'s case and there is no clear finding about the submission of the certificate. 14. Another defence taken by the appellants is that they had acted in a bona fide manner and the certificate had been issued wrongly by the concerned authorities and therefore the mistake was on the part of the issuing authorities. The paragraph of the certificate reproduced above wherein emphasis has been added shows clearly that the project authorities never presumed that they are eligible for the exemption. They had only made a request stating the facts that the excisable goods may please be allowed free of duty. There is nowhere a categorical observation that the excisable goods supplied to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; Member (T) DIFFERENCE OF OPINION 15. Whether the demand of duty of Rs. 50,96,621 + interest invoking extended period is to be ordered to be recalculated applying normal period of limitation as held by Member (Judicial) or uphold invoking extended period as held by Member (Technical). 16. Whether penalty of Rs. 50,96,621/- has to be set aside as held by Member (Judicial) or upheld, as held by Member (Technical). 17. Whether penalty of Rs. 5,00,000/- imposed on Shri Francis D'Silva, Commercial Manager-cum-authorized signatory of the appellant has to be set aside as held by Member (Judicial) or be reduced to Rs.10,000/- as held by Member (Technical). 18. In view of the above difference of opinion, Registry is directed to place the papers before Hon'ble President for referring the matter to Third Member. Sd/- (B.S.V. Murthy) Member (T) Dated 24-6-2008 Sd/- (Archana Wadhwa) Member (J) Dated 24-6-2008 &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in agreement with the pleas taken by the appellants and hold that their bonafides cannot be doubted once the certificate was signed by the specified authority who requested the jurisdictional Assistant Commissioner to allow exemption. The appellants cannot be said to have a mala fide intention as duty was required to be paid by the customers, who were government authorities and therefore, could not have colluded with the manufacturer for evasion of duty. The manufacturer did not stand to gain anything by evading duty which was to be paid by the various government organizations. I also take note of the fact that the manufacturer was supplying to other government authorities also where no such fault was found. The fact that the Japan Bank of International Cooperation was not an international organization approved duly in terms of the explanation attached to Notification No.108/95 was not readily forthcoming by any records to which the manufacturer had access and therefore he was dependent upon the project implementing authority and the Secretary to the state governments, who were in the better know of the facts The department has to ascertain the factual position from the Under Secre ..... 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