Hindustan Colas Ltd. Vs. Ccex - Court Judgment

Excerpt:
1. this is an appeal against the order of the commissioner (appeals) no. commr(a)/187/vdr-i/2006 dated 31.10.2006. (a) the appellants cleared bitumen emulsions and value added bitumen products to various contractors, who were executing the project funded by the world bank. (b) for such world bank funded project, the project implementing authority has been designated which has the approval of the central government and such authorities have issued certificates in the name of various contractors to undertake different aspects of the work to procure materials required for the project. (c) the appellant in pursuance of such certificates given to the contractors cleared the goods availing the exemption in terms of notification no. 108/95-ce dated 28.8.95. (d) the original authority took the view that the certificate issued by the project implementing authority is not in the name of the appellant and therefore availment of benefit of notification no. 108/95 is not in order and accordingly, demanded the duty of rs. 9,64,025/- and interest besides imposition of penalty. (e) the commissioner (appeals) has upheld the order of the original authority.4. ld. advocate for the appellants submits that notification no. 108/95 exempt goods and the condition of production of certificate from the project implementing authority has been satisfied and the department's stand that the certificate should have been issued in the name of the appellant is not in order. he relies on the following judgments: (iii) deepak cables v. cce, bangalore final order no. 1613 & 1614 dated 9.9.2005tiki tar industries and anr. v. cce, vadodara 2007 (78) rlt 233 (tri)cce, hyderabad v. ap paper mills ltd. 2004 tiol 1026 cestat-hyd 5. the ld. dr submits that order of the commissioner (appeals) should be upheld and notification is to be construed strictly and the certificate having been in the name of the contractor, the appellant is not entitled to avail the exemption. he relies on the following judgments:cce, hyd v. ap paper mills ltd. (ii) dee development engineers ltd. v. cce, delhi-v 2004 (178) elt 452 (tri-del).6. we have carefully considered the rival submissions. the followings are not in dispute: the project is funded by the world bank; the projects are divided into various contract for different types of work and assigned to different contractors; the project implementing authority has been approved by the world bank and by the govt. of india; the goods cleared by the appellants have been used for the project. the notification, no doubt, envisages production of the certificate from the project implementing authority and the purpose of the certificate is only to ensure that the material procured duty free are required and used for the said project. it should be understood that the appellants may supply goods not only for the project, which is eligible for exemption but also to others who are not availing the said exemption. there is no rational to issue the certificate in the name of the supplier. basically, the notification is a kind of enduse notification and that is meant for use in the work funded by the world bank. there is also no stipulation in the notifications that the certificate by the project implementing authority should be in the names of suppliers of the materials.7. the ratio of various judgments relied by the learned advocate justify the extension of the benefit of the notification as long as the intended purpose namely the use of the product for the world bank funded project is complied with.8. in view of the above, the appeal deserves to be allowed and accordingly, the appeal is allowed.

Judgment:
1. This is an appeal against the order of the Commissioner (Appeals) No. Commr(A)/187/VDR-I/2006 dated 31.10.2006.

(a) The appellants cleared Bitumen Emulsions and value added Bitumen products to various contractors, who were executing the project funded by the World Bank.

(b) For such World Bank funded project, the Project Implementing Authority has been designated which has the approval of the Central Government and such authorities have issued certificates in the name of various contractors to undertake different aspects of the work to procure materials required for the project.

(c) The appellant in pursuance of such certificates given to the contractors cleared the goods availing the exemption in terms of Notification No. 108/95-CE dated 28.8.95.

(d) The original authority took the view that the certificate issued by the Project Implementing Authority is not in the name of the appellant and therefore availment of benefit of Notification No. 108/95 is not in order and accordingly, demanded the duty of Rs. 9,64,025/- and interest besides imposition of penalty.

(e) The Commissioner (Appeals) has upheld the order of the original authority.

4. Ld. Advocate for the appellants submits that Notification No. 108/95 exempt goods and the condition of production of certificate from the project implementing authority has been satisfied and the department's stand that the certificate should have been issued in the name of the appellant is not in order. He relies on the following judgments: (iii) Deepak Cables v. CCE, Bangalore final Order No. 1613 & 1614 dated 9.9.2005Tiki Tar Industries and Anr. v. CCE, Vadodara 2007 (78) RLT 233 (Tri)CCE, Hyderabad v. AP Paper Mills Ltd. 2004 TIOL 1026 CESTAT-Hyd 5. The ld. DR submits that order of the Commissioner (Appeals) should be upheld and Notification is to be construed strictly and the certificate having been in the name of the contractor, the appellant is not entitled to avail the exemption. He relies on the following judgments:CCE, Hyd v. AP Paper Mills Ltd. (ii) Dee Development Engineers Ltd. v. CCE, Delhi-V 2004 (178) ELT 452 (Tri-Del).

6. We have carefully considered the rival submissions. The followings are not in dispute: The project is funded by the World Bank; the projects are divided into various contract for different types of work and assigned to different contractors; the project implementing authority has been approved by the World Bank and by the Govt. of India; the goods cleared by the appellants have been used for the project. The notification, no doubt, envisages production of the certificate from the project implementing authority and the purpose of the certificate is only to ensure that the material procured duty free are required and used for the said project. It should be understood that the appellants may supply goods not only for the project, which is eligible for exemption but also to others who are not availing the said exemption. There is no rational to issue the certificate in the name of the supplier. Basically, the Notification is a kind of enduse notification and that is meant for use in the work funded by the World Bank. There is also no stipulation in the notifications that the certificate by the project implementing authority should be in the names of suppliers of the materials.

7. The ratio of various judgments relied by the learned Advocate justify the extension of the benefit of the Notification as long as the intended purpose namely the use of the product for the World Bank funded project is complied with.

8. In view of the above, the appeal deserves to be allowed and accordingly, the appeal is allowed.