TMI Blog2001 (7) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 crore (Rupees eighty crore) only. The benefit of exemption from Customs Duty as availed by the appellants in terms of the Notification No. 13/81-Cus., dated 9-2-1981 has been disallowed and the Customs Duty has been demanded on the said Power Plant Apart from that, penalty of Rs. 10.00 crore (Rupees ten crore) has also been imposed on M/s. Indian Charge Chrome Ltd.; penalty of Rs. l0.00 crore (Rupees ten crore) only on the second appellant firm, M/s. Indian Metals Ferro Alloys Ltd.; and that of Rs. 5.00 crore (Rupees five crore) only on Dr. B. Panda, Chairman Managing Director of both the Companies. 2. Briefly stated the facts of the case are as under : - 2.1 M/s. Indian Charge Chrome Ltd. (here-in-after referred to as ICCL) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the same is not very relevant to the dispute involved in the present appeals and as such, the factual position relating to importation of Captive Power Plant by the appellants can be avoided. 2.2 The dispute in the present appeal relates to the fulfilment of post-importation conditions of Notification No. 13/81-Cus., which, according to the Revenue, have been violated by the appellants. Admittedly, the Captive Power Plant was allowed import in terms of letter of intent dated 26-11-1984 of Government of India i.e. to meet the power requirement of two 100% E.O.Us. and the exemption from payment of Customs Duty was allowed by the Revenue under Notification No. 13/81-Cus. in terms of Hon'ble Supreme Court's Order dated 5-6-1985. The Power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13/81-Cus., dated 9-2-1981. The Revenue's stand is that since the Power Plant was imported for generation of power to be used in the manufacture of charge chrome to be exported out of India, diversion of the excess power to domestic tariff area has violated the condition of the Notification. On the other hand, the appellants' contention is that the surplus power so generated could not be stored by them on account of its very nature and as such, has to be transmitted through electricity grid and sold in the domestic area. 3.1 We find from the impugned Order that no specific condition of Notification No. 13/81-Cus., has been referred to by the adjudicating authority, which according to him, has been violated. The entire case of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Area. They have vehemently contended that the power requirement of 2 EOUs was about 80 MW and though, the imported Power Plant was for a capacity of 108 MW, it would have never generated more than 65 MW even if operated efficiently. Therefore, the CPP was only enough to meet the requirement of 2 EOUs. They have also pointed out that the Power Plant never produced beyond 65 MW and the sale of surplus power arose due to unforeseen circumstances/contingencies which arose after import of CPP. Though the above position may be true, the same is irrelevant for the present case because after having contended before Hon'ble Supreme Court that Notification 13/81-Cus. is applicable and adequate for their case it is not open for them to take the ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply of electricity to IMFA. The electricity supplied by ICCL is appropriated by Orissa State Electricity Board and is pooled in the Grid System and the same cannot be segregated for the purpose of distribution to any particular consumer. As such, it is not possible to match the electricity produced at a given point of time with that of the electricity consumed at the same point of time. There will always be either surplus or deficit. The appellants' contention that in the absence of a restrictive clause in the Notification that the imported goods will be solely or exclusively (emphasis provided) used for the purposes of manufacture of goods for export, no violation of any conditions of the Notification can be said to have been committed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if the intention of the Government were to exclude the exemption to duty-paid pig iron when mixed with other materials then the notification would have used the expression "only" or "exclusively" or "entirely" in regard to duty-paid pig iron. 3.5 The appellants have referred to a number of other similar notifications, being Notification No. 173/79-Cus., dated 7-8-1979, Notification No. 51/96-Cus., dated 23-7-1996 and Notification No. 39/96-Cus., dated 23-7-1996 - wherein the word, 'exclusively', has been used in contradiction to the Notification involved in the present case. We also find that the Hon'ble Calcutta High Court in the case of Nayak Associates v. U.O.I., reported in 1991 (55) E. L. T. 189, after taking into account the vario ..... X X X X Extracts X X X X X X X X Extracts X X X X
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