Custom, Excise & Service Tax Tribunal Ge Power India Limited vs VadodaraIi on 11 July, 2024 Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench at Ahmedabad REGIONAL BENCHCOURT NO. 3 EXCISE Appeal No. 10580 of 2016 DB (Arising out of OIAVADEXCUS002APP385201516 dated 22/12/2015 passed by Commissioner of Central Excise, Customs and Service TaxVADODARAII) GE POWER INDIA LIMITED ........Appellant Erda Road, Maneja, Vadodara, Gujarat VERSUS Commissioner of C.E. & S.T.VADODARAII ......Respondent 1st Floor... Room No.101, New Central Excise Building, Vadodara, Gujarat 390023 APPEARANCE: Shri Ishan Bhatt, Advocate for the Appellant Shri Satyapal Singh Vikal, Assistant Commissioner (AR) for the Respondent HON'BLE MEMBER (TECHNICAL), MR. C L MAHAR Final Order No. 11537/2024 DATE OF HEARING: 13.03.2024 DATE OF DECISION: 11.07.2024 RAMESH NAIR The Appellants are inter alia engaged in the manufacture of machinery classified under Chapter 84 & 85 of the First Schedule to the Central Excise Tariff Act, 1985 at their factory located at ERDA Road, Maneja, Vadodara 390 013. 1.1 Against international competitive bidding, the Appellants were awarded a contract for supply of electromechanical and hydromechanical plant and machinery (onshore component) to THDC India Limited (hereinafter referred to as "THDC") for use in Tehri PSP Hydroelectric project in the state of Uttarakhand by Contract No. THDC/RKSH/CD 262/AG/04 dated 23.07.2011. 2|Page E/10580/2016 DB 1.2 The Tehri PSP Hydroelectric project is an interstate Mega Hydro Power Project certified by the Joint Secretary, Ministry of Power, Govt. of India vide Letter Ref. No. 10/2/2002III dated 20.04.2007. 1.3 In pursuance to the contract dated 23.07.2011, the Appellants supplied specified finished goods to THDC, a joint venture undertaking of the Government of India and Government of Uttar Pradesh, for use in the Tehri PSP Hydroelectric Power Project. During March 2015, the Appellants cleared finished goods to THDC under the cover of Central Excise Invoices No. 2001400441 dated 27.03.2015, 2001400444 dated 31.03.2015 and 2001400445 dated 31.03.2015 on payment of total duty of Rs.68,44,330/. 1.4 At the time of clearance, as per the amended Notification No. 12/2012CE dated 17.03.2012, the amended Condition No. 41 was applicable by amendment Notification No. 12/2015CE dated 01.03.2015. Since, the appellant had to clear the goods in the month March2015 itself, they could not obtain the required certificate from Chairman and Managing Director of the public sector undertaking as was required in terms of Clause (b) of Condition No. 93 of Customs Notification 17/2012Cus dated 17.03.2012. Therefore, due to non availability of the said certificate, the appellant prefer to clear the goods on payment of duty. However, subsequently the appellant could obtain the said required certificate on 02.05.2015. The same was intimated by the appellant to the department vide their letter dated 14.05.2015. Consequent to the eligibility of the exemption notification, the appellant filed the refund claim vide their letter dated 08.06.2015 for refund claim of Central Excise duty of Rs. 68,44,330/ . They were issued a show cause notice dated 14.08.2015 proposing rejection of the refund claim and also to credit the same to the consumer welfare fund in terms of Proviso to Section 11B(2) of the Central Excise Act, 1944, if any refund of duty held liable to be sanctioned. 3|Page E/10580/2016 DB 1.5 The Adjudicating authority i.e. Deputy Commissioner vide Orderin original dated 02.09.2015 though observed favourability on the issue of unjust enrichment and observed that the duty burden has not been passed, thereby dropped proceeding initiated under Proviso to Section 11B(2) of the Central Excise Act, 1944 but on merit rejected the refund claim on the ground that the required certificate from the PSU was not produced at the time of clearance of the goods. Being aggrieved by the said orderin original dated 02.09.2015, the appellant filed an appeal before the Commissioner (Appeal) which came to be rejected, therefore the present appeal filed by the appellant. 2. Shri Ishan Bhatt, Learned Counsel appearing on behalf of the appellant submits that it is not in dispute that the goods were supplied against International Competitive Bidding (ICB) as per Sl. No. 3