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Commr. of C. Ex. & Service Tax V/S KEI Industries Limited

    Final Order Nos. 56757-56758/2017 in Appeal Nos. E/52061 and 52065/2015

    Decided On, 25 September 2017

    At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi

    By, MEMBER

    For Petitioner: S.K. Bansal, A.R. And For Respondents: Rinky Arora, Advocate

Judgment Text

1. Both the appeals have been filed by the Revenue against the order-in-appeal Nos. 65(SLM)CE/JPR/2015; and 66-69(SLM)CE/JPR/2015, dated 19-2-2015 & 23-2-2015 respectively, passed by the Commissioner (Appeals), Central Excise, Jaipur. The facts and circumstances of both the cases are identical, hence, disposed of by this common order for the sake of brevity. The period of dispute is April, 2007 to December, 2010.

2. Brief facts of the case are that during the

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period under consideration, the assessee-respondent were engaged in the manufacture of insulated wire and cables falling under Chapter Heading 85.44 of the Central Excise Tariff Act, 1985. The assessee supplied instrumental cables to Mega Thermal Power Plant being set up by M/s. NTPC and M/s. Jindal Power Ltd. and claimed the benefit of duty exemption as per Notification No. 6/2006-C.E, dated 1-3-2006. The benefit claimed was disallowed by the original adjudicating authority but Commissioner (Appeals) has allowed the claim of the respondents by the impugned orders. Being aggrieved, the department have filed the present appeals.

3. With this background, we heard Sh. S.K. Bansal, Ld. AR for the Revenue who submits that in the instant case, the certificate was issued by the Joint Secretary to the Government of India, Ministry of Power. He submits that another certificate was required from the Chairman-cum-Managing Director which was not produced. It is his submission that the respondent is not registered with import regulation. For this purpose, he relied on the ratio laid down in the case of Pratap Rajasthan Copper Foils & Laminates Ltd. v. Collector-1997 (95) E.L.T. A235 (S.C.). But facts remain that the said ratio is pertaining to the "project import concession for spares and accessories". But, in the instant case, it was the domestic consumption, there was no import concession claimed by the respondents. So, the ratio is not applicable.

4. On the other hand, Ms. Rinky Arora, Ld. Advocate for the assessee relied on the impugned order. She submits that another certificate is required only in the case of import which is not the instant case.

5. After hearing both the parties and on perusal of record, it appears that the identical issue has come up before the Tribunal in the assessee's own case (Final Order No. 52371/2016, dated 1-7-2016) where it was observed that -

"2. Demand of duty of Rs. 1,92,39,496/- stands confirmed against the appellant on the ground that the exemption of custom duty provided under Sl. No. 400 of the Notification No. 21/2002 , dated 1-3-2002 and inasmuch as the said Sl. No. applies to goods classifiable under Chapter 98.01 of the Customs tariff and for availing the benefit of Notification No. 21/2002 for goods of 98.01, requirements of Project Import Regulation, 1986 are to be satisfied, the benefit of the notification cannot be extended to wires and cables classifiable under Chapter 85 of the tariff for non-fulfillment of Project Import Regulation, 1986.

3. After hearing both sides, we find that an identical dispute was the subject matter of recent decision of the Tribunal in the case of M/s. Paramount Communication Ltd. v. CCE, Jaipur vide final Order Nos. 52166-52167/2016, dated 23-6-2016, the benefit was extended by observing as under:

"9. We find that goods in question are classifiable under Chapter 85 of the Tariff. Under Central Excise Tariff there is no Heading 98.01 which exists in Customs Tariff only. Since the goods manufactured in India cannot be classified under 98.01 of the Central Excise Tariff, denial of the exemption on the ground of non-fulfillment of condition of Project Import Regulation is not sustainable particularly when condition No. 86 of the Notification No. 21/2002, dated 1-3-2002 is fulfilled by them. Similar submissions were made by Revenue for denying the benefit of Notification No. 6/2006, dated 1-3-2006 on the ground of non-fulfillment of conditions of the Project Import Regulation in case of Sarita Steel and Industries Ltd. reported in : 2011 (264) E.L.T. 313 and Tribunal in that case allowed the exemption under Notification No. 6/2006, dated 1-3-2006 to the assessee. Reference can be made to another decision of the Tribunal in the case of Om Metals SPML JV Unit 2 v. CCE, Jaipur as reported in [2013 (298) E.L.T. 79 Tri.-Del.)]. We, therefore, hold that appellants are eligible for exemption under Notification No. 6/2006 , dated 1-3-2006 and accordingly set-aside the impugned order and allow the appeal"

6. By following our earlier order (supra), we find no reason to interfere with the impugned orders, the same are hereby sustained along with the reasons mentioned therein.

7. In the result, both the appeals filed by the department are dismissed

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