Commissioner of GST & Central Excise Chennai Versus M/s. The EIMCO KCP Ltd.
Central Excise
2019 (2) TMI 79 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 22-11-2018
Appeal No. E/264/2012 – Final Order No. 43019/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri L. Nandakumar, AC (AR) for the Appellant
Shri M.N. Bharathi, Advocate for the Respondent
ORDER
Per Bench
Brief facts are that the respondents are engaged in manufacture of filtration equipment falling under CETSH 84212190 of CETA, 1985. On scrutiny of records for the months of December 2007 to May 2008, it was found that they had cleared filtration equipment without payment of duty claiming exemption under Sl. No. 91of Notification No.6/2006-CE dated 1.3.2006 for supply against International Competitive Bidding. As it appeared that the exemption was available only to M/s. VA-Tech Wabag Ltd., as they were the actual bidders and the
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ts of International Competitive Bidding, M/s. VA-Tech Wabag Ltd. has participated in the international competitive bidding and the project authorities M/s. NTPC has issued certificate to M/s. VA Tech Wabag Ltd. The respondent is a sub-contractor as seen from the certificate issued by the project authority and therefore the goods supplied by the respondent would satisfy Condition 19 of the said Notification. The issue is decided in the following cases:-
a. Commissioner of Customs, Mumbai Vs. Rochem Separation Systems Ltd. Ltd. – 2010 (251) ELT 438
b. Commissioner of Central Excise, Puducherry Vs. Caterpillar India Ltd. – 2013 (297) ELT 8 (Mad.) upheld by the Hon'ble Supreme Court in 2016 (335) ELT A27 (SC)
c. Kanta Rubber Pvt. Ltd. Vs. Commissioner of Customs – 2017 (353) ELT 124
d. Toshniwal Industries Pvt. Ltd. Vs. Commissioner of Central Excise, Jaipur – 2017 (5) GSTL 179.
4. Heard both sides.
5. The respondents have supplied the goods for water treatment plant for human consum
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in fact supplied to such power project and the equipments were installed at the project site. What we noticed is that neither the benefits under Notification No. 21/2002-Cus. (Sr. No. 400) nor the exemption under Notification No. 6/2006-C.E. (Sr. No. 91) is subject to any conditions stipulated in Foreign Trade Policy. BHEL as the main contractor could have imported the impugned goods without payment of Customs duty in view of Notification No. 21/2002-Cus. (Sr. No. 400). Notification No. 6/2006-C.E. Sr. No. 91 only makes it possible to procure such goods locally without payment of excise duty if BHEL so desires and BHEL opted for local procurement from the assessee-appellants. So, naturally the assessee-appellants should be eligible for exemption under Notification No. 6/2006-C.E. (Sr. No. 91). Prima facie, the deemed export benefits dealt within para 8.6.1 and 8.6.2 deal with incentive granted by DGFT and not exemption granted by Ministry of Finance and there is no reason to refer to
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