AUTHORITY FOR ADVANCE RULINGS
(CENTRAL EXCISE, CUSTOMS & SERVICE TAX)
NEW DELHI
PRESENT
Hon'ble Mr. Justice P. V. Reddi (Chairman)
Mr. A Sinha
Mrs.
Chitra Saha
(Member)
(Member)
Tuesday, the fifteenth May of two thousand
seven
Ruling
No. AAR/01(Cus)/2007
in
Applicant | M/s Enercon (India) Limited,
Kolsite House, Plot No. 31,
Shah Industrial Estate
Veera Desai Road, Andheri (West)
Mumbai-400053 |
Commissioner concerned | Commissioner of Customs (Import)
Nhava Sheva, Raigad, Maharashtra |
Present for the Applicant | Mr. Paresh M. Joshi, Advocate
Mr. Anurag Mishra, Manager
Enercon (India) Ltd. |
Present for the Commissioner Mr. Deepak Garg, SDR
concerned | Mr. Deepak Garg, SDR
concerned ,CESTAT, New Delhi |
R U L I N G
( By Mr. Justice P. V. Reddi, Chairman )
1.
The applicant Enercon (India) Limited is a company registered under the
Indian Companies Act, 1956 having
its corporate office at Andheri (West), Mumbai.
As per the facts stated in the application, Enercon GmbH of Germany holds
majority equity capital of Enercon (India) Limited - the applicant. It
has entered into a collaboration agreement with the said German company and has
set up a modern plant in the Union territory of Daman as a joint venture for the
manufacture of wind operated electricity generators.
These facts are borne out by the Joint Venture Agreement and
Share-holding Agreement filed by the applicant (vide Annexures C and D to the
application).
2.
The applicant submits that it intends to set up independent power
generation projects of different capacities across India by harnessing wind
energy. The applicant also proposes
to have a business tie up with an existing company/project by entering into an
'agreement to sell' in order to set up wind-energy based independent power
project. The business activities
proposed to be undertaken by the
applicant are set out in Annexure-II to the application as follows :
"BUSINESS
ACTIVITY TYPE -I - Enercon India Ltd intends and desires to set up power
generation projects across India in different states by harnessing wind energy
by setting up large number of independent power generation projects along with
power stations, whereby electricity so generated will be connected to local grid
supplying power to consumers for which a separate division called IPP division
is being carved out in their organizational set up. The IPP division shall set
up an independent power generation project of different capacities by importing
from places outside India goods ie, machinery, instruments, apparatus,
appliances, transmission equipment, auxiliary equipment, components, raw
material etc. falling under chapter 98 tariff item 9801 and after installing and
commissioning the same to effectively generate
the electricity for the nation. Enercon India Ltd after installing and
commissioning independent power projects may sell the entire project at a price,
which is determinable upon prevailing market conditions in the power generation
sector. The sole objective of IPP division would be to set up exclusively an
independent power project with sole objective of generating clean and green
power. The power so generated will not be used for the captive consumption.
BUSINESS
ACTIVITY TYPE -II:. .......... Enercon (India ) Ltd. would carryout above
activities whereby a business tie up would be made with an existing company /
projects by way of "offer to sell" (Agreement to sell) for setting up an
independent power project which would be called IPP division of the Existing
company/project with whom the business tie up would materialize by accepting
"such an offer to sell" and "part payment".
Such an IPP division so set up for entities would be in activities other
than power generation and eventually will independently sell the electricity and
shall not consume the electricity captively.........."
2.1
The diagrams relating to the generator manufacturing are given in Exhibit
I. The details of articles proposed
to be imported are given in Exhibit J to the application.
3.
It is the contention of the applicant that the articles (which are mostly
components and parts of wind operated electricity generators) components to be
imported by it for the purpose of setting up the wind-mill based independent
power projects attract customs duty @ 5% only and no additional duty/CVD is
leviable under Section 3(1) or 3(5) of the Customs Tariff Act on such imports.
4.
The following questions for determination were re-framed by the
applicant:
"1.
Whether the goods detailed in Exhibit "J" which are proposed to be
imported by the Applicants and which are required by the applicants for proposed
Independent Power Project (not for captive consumption) by harnessing the wind
energy described in Annexure II & Exhibit "I" will be eligible for
classification under Customs Tariff Heading 9801?
2.
(a)
Whether the said goods referred to in Question No. 1 above will be
eligible for exemption from basic customs duty in excess of 5% under Serial No.
399 (iv) of customs notification No. 21/2002-cus dated 01.03.2002?
(b)
Whether the said goods referred to in question No. 1 will be eligible for
exemption from the whole of the additional duty of customs under section 3(1) of
the Customs Tariff Act, 1975 by virtue of serial No. 84, list 5, item 13 of
Central Excise notification No. 6/2006-CE dated 01.03.2006?
(c)
Whether the said goods referred to
in Question No. 1 will be eligible for exemption from the whole of the
additional duty of customs under section 3(5) of the Customs Tariff Act, 1975 by
virtue of serial No. 11 of custom exemption notification No. 20/2006-cus dated
01.03.2006?"
5.
The Commissioner of Customs (Import), Nhava Sheva, Raigad, Maharashtra in
his comments stated that Chapter heading 9801 of the First Schedule to the
Customs Tariff Act, applies only to specified projects sponsored by specified
sponsoring authorities with a detailed itemized list of goods to be imported duly
attested by the sponsoring
authority and imported under specific contracts registered prior to the import
of the goods. In this application, there is no such sponsored project and there is no specific
list of goods duly approved by the sponsoring authority as being required for
the Project. Hence it is not possible to extend the facility of heading 9801 to
the applicant. Again in para 3 it
is stated that the classification under 9801 i.e. project imports starts with a
sponsoring to a specified project by the specified agency and in the absence of
it, the applicant cannot avail of the benefit of any of the notifications relied
upon by the applicant. As regards
the C.E. Notification No. 6/2006-C.E. dated 1.3.2006, it is further stated that
CESTAT has already decided the matter in respect of identical entry in an
earlier notification. After
the questions were reframed/amended, the Commissioner of Customs (Import) JNCH,
zone-II reiterated in his comments that the Customs Department in terms of
Regulation 5 of the Project Import Clearance, 1986 relies upon the clearance
from the concerned sponsoring authority for the purpose of assessment under
Heading No. 9801.
6.
With reference to the plea raised by
the Departmental Representative that
the CESTAT has already decided the issue in the case of Indian Charge Chrome
Ltd. vs.
Commissioner of Customs, Visakhapatnam, this Authority overruled the
objection holding that it has no bearing on the present issue.
Therefore, the show cause notice issued under the proviso to Section 28-I (2)
of the Customs Act was discharged and the application was accordingly allowed
for pronouncement of ruling under sub-section (4) of the said section.
7.
In order to find answers to the questions formulated, it is necessary to
refer to the relevant portions of the First Schedule and the notifications.
Chapter 98 which forms part of the 1st Schedule to the Customs
Tariff Act, 1975 (hereafter referred to as the CT Act) deals,
inter-alia, with project imports. Against
heading No 9801 of the Table, the description of the goods given is as follows :
Tariff Item |
Description of goods |
Unit |
Rate of duty Standard |
Preferential Areas |
(1) |
(2) |
(3) |
(4) |
(5) |
9801
|
All
items of machinery including prime movers, instruments, apparatus and
appliances, control gear and transmission equipment, auxiliary equipment (
including those required for research and development purposes, testing
and quality control), as well as all components (whether finished or not)
or raw materials for the manufacture of the aforesaid items and their
components, required for the initial setting up of a unit, or the substantial expansion of
an existing unit,* of a specified:
(1) Industrial plant,
(2) Irrigation project,
(3) Power project*,
(4) Mining project,
(5) Project for the exploration for the oil or other minerals, and
(6)
Such other project as the central government may having regard to the
economic development of the country notify in the official Gazette in this
behalf; and spare parts, other raw materials (including semi finished
material) or Consumable Stores not exceeding 10 % of the value of the
goods specified above provided that such spare parts, raw materials or
consumables stores are essential for the maintenance of the plant or
project mentioned in (1) to (6) above
|
|
|
|
|
---
Machinery :
|
|
|
|
9801
00 11
|
----
For industrial plant project..........
|
kg.
|
12.5%
|
-
|
9801
0012
|
----
For irrigation plant.......
|
kg.
|
12.5%
|
-
|
9801
00 13
|
----
For power project........
|
kg.
|
12.5%
|
-
|
9801
00 14
|
----
For mining project.........
|
kg.
|
12.5%
|
-
|
9801
00 15
|
----
Project for exploration of oil or other minerals......
|
kg.
|
12.5%
|
-
|
9801
00 19
|
----
For other projects.........
|
kg.
|
12.5%
|
-
|
*
Emphasis supplied.
Note 2 of Chapter 98 is important. It
lays down :
"Heading
9801 is to be taken to apply to all goods which are imported in accordance with
the regulations made under Section 157 of the Customs Act, 1962 (52 of 1962) and
expressions used in this heading shall have the meaning assigned to them in the
said regulations."
7.1
Project Imports Regulations, 1986 were framed by the Central Board of
Excise and Customs and the provisions thereof will be referred to later.
7.2
Notification No. 21/2002-Cus dated 01.03.2002 (as amended from time to
time) has been issued under sub-section (1) of section 25 of the Customs Act. It
exempts the goods of the description specified in column 3 of the Table and
falling within the Chapter, heading or sub-heading of the First Schedule to the
CT Act, 1975, as are specified in the corresponding entries in
column 2 of the Table, when imported into India,
(a) from so much of the duty of customs leviable thereon under the First
Schedule as is in excess of the amount calculated at the rate specified in the
corresponding entry in column (4) of the Table and (b) from so much of the
additional duty leviable thereon under sub-section (1) of section 3 of the CT
Act, as is in excess of the rate specified in the corresponding entry in
column (5) of the Table, subject to any of the conditions, specified in the
annexure to the notification.
7.3
Against Sl.No. 399, the goods falling under the heading 9801 are
mentioned. The relevant columns of
the Table annexed to the notification are given hereunder :
S.No.
|
Chapter or Heading or sub-Heading
|
Description of goods
|
Standard rate
|
Additional duty rate
|
Condition No.
|
1.
|
2.
|
3.
|
4.
|
5.
|
6.
|
---
|
---
|
-------
|
--
|
--
|
--
|
399.
|
9801
|
Goods
required for
(i)
fertilizer projects;
(ii)
coal mining projects;
(iii)
omitted
(iv) power generation
projects including gas turbine power projects (excluding captive power
plants set up by projects engaged in activities other than in power
generation);
(v)
barge mounted power plants
(vi) power transmission, sub-transmission or distribution
projects;
|
5%
5%
5%
5%
7.5%
|
16%
16%
16%
-
16%
|
-
-
-
-
-
|
---
|
---
|
-------
|
--
|
--
|
--
|
7.4
The Heading No. 9801 also occurs at some other serial numbers, but we are
not concerned with them. Suffice it
to refer to Sl. No. 441, which reads as follows :
S.No.
|
Chapter or Heading or sub-Heading
|
Description of goods
|
Standard rate
|
Additional duty rate
|
Condition No.
|
1.
|
2.
|
3.
|
4.
|
5.
|
6.
|
441.
|
9801
|
All
goods
|
7.5%
|
-
|
-
|
Having
regard to the specific Entry relating to goods required for certain projects,
this general Entry will not be of relevance in the instant case.
7.5
It is seen from the notification No. 21/2002-Cus that the goods required
for the power generation projects (excluding certain categories of captive power
plants) are liable to bear the
maximum basic duty (standard rate) at 5% and the maximum additional duty rate at
16%. Anything above that rate
stands exempted. There is no doubt
that this notification will apply only to the goods falling under the heading
9801 and imported in accordance with the requirements laid down in Chapter 98.
When we go back to the Chapter 98, Note 2 referred to earlier assumes
importance. The
Note categorically declares that Heading 9801 is to be taken to apply to
all goods which are imported in accordance with the regulations made under
section 157 of the Customs Act. Those
regulations are the Project Import Regulations, 1986.
Let us now briefly advert to those regulations:
7.6
Regulation 4 enjoins that the assessment under the Heading No. 9801 of
the First Schedule to the CT Act shall be available to only those goods which
are imported (whether in one or more than one consignment) under one or more
specific contracts which have been registered with the appropriate Customs House
in the manner specified. Such
contracts should have been registered before any order is made by the Custom
Officer permitting the clearance of goods for home consumption.
The registration of contract is provided for by Regulation 5.
It, inter alia, lays down that the application should be made on or
before importation of goods. The applicant shall apply to the appropriate officer at the
Port concerned for registration of contract soon after he has obtained the
import licence for import of articles covered by the contract and in the case of
imports covered by the Open General Licence, as soon as clearance from the
concerned sponsoring authority has been obtained. The accompanying documents are specified in clause (4) of
Regulation 5. They include the
original deed of contract and an approved list of items from the sponsoring
authority. On being satisfied
that the application is in order, the proper officer shall register the contract
by entering the particulars thereof and communicate the registration number to
the importer [vide clause (6)]. The
sponsoring authorities are specified in the Table.
8.
The compliance with the Project Import Regulations is mandatory before
bringing the importation within the purview of Chapter 98 and claiming any
benefit of exemption or concession applicable to the goods enumerated in the
said Chapter. Obtaining from the
sponsoring authority an approved list of items required for setting up the
project, the registration of contracts with the appropriate officer of the
Customs House and filing an application with the requisite particulars and
documents are indispensable requirements for bringing the import of goods needed
for specified projects within the fold of Heading No. 9801.
If any authority is needed, we may refer to the decision of Supreme Court
in Mihir Textiles Ltd vs. Collector of Customs, Bombay 1997 (92) E.L.T. 9
(S.C.). In that case, concessional tariff was claimed under Tariff Heading No.
84.66. The proviso thereto is more
or less the same as Note 2 of Chapter 9801.
The Supreme Court analyzed the proviso and held as follows :
"The
proviso prescribes, principally, three conditions to be satisfied for
enment of the concessional rate shown in the aforesaid entry.
They are - (1) Goods should have been imported against a specified
contract registered with the appropriate Customs House; (2) Such registration
should have been made in the manner prescribed by the regulations; (3)
Registration of the contract should have been obtained before the order
(granting permission for clearance of the goods) was passed.
Unless all the three conditions are satisfied, no importer can claim, as
a matter of right, the concessional relief
provided in the Entry. In
these cases the contracts were not registered at all before the order of
clearance was passed. That fact is
not disputed before us and as the appellants were aware of position they chose
to pay full customs duty for making the clearance."
The contention that the application for registration could not be made to
the Collector of Customs before the clearance of goods for no fault of
appellant, was negatived.
9.
The comments of the Commissioner of Customs in so far as the necessity to
follow the requirements of project import regulations viz. clearance from
sponsoring authority and registration of contracts is unexceptionable but to say
that there is no such sponsored project and there is no specific list of goods
and therefore it is not possible to extend the facility of heading 9801 is
untenable. It amounts to putting
the cart before the horse. The
compliance with the mandatory formalities under the Project Import Regulations
could only arise as and when the project is actually taken up and the applicant
starts importing the goods. The
learned Departmental Representative has rightly clarified that if the twin
requirements of Project Import Regulations are complied with, the applicant's
proposed imports can be brought under the Tariff Heading 9801.
When we put this aspect of the matter to the applicant's counsel, he
stated that the applicant is prepared to comply with the requirements of Project
Import Regulations. We then
directed the applicant to file an affidavit to that effect as the application
does not categorically spell it out. The
affidavit has since been filed by Mr. Ajay Mehra, Director of the
applicant-company. It is stated
therein that "Enercon India Limited in respect of their questions on proposed
business activity set out in detail in the application would follow project
import regulations and shall ensure its compliance as contemplated in accordance
with law" and "shall also follow and ensure compliance of other statutes in
accordance with law"
10.
In the light of the above statement and the foregoing discussion, there
can possibly be no controversy that the goods required for power generation
projects (not for captive consumption) proposed to be set up and run by the
applicant by harnessing the wind energy, if imported in accordance with the
Project Import Regulations 1986 will be eligible for classification under Tariff
Heading No. 9801. Accordingly
the first question is answered.
11.
We would however like to clarify two things, firstly we have not examined
with reference to each item of goods specified in annexure - "J" whether
these goods are in fact required for setting up the wind energy based power
plant. That is a matter which
primarily has to be addressed by the sponsoring authority while preparing and
approving the list. The second
point which we would like to clarify to obviate possible controversy, is that
the expression 'deed of contract' should not be narrowly construed as
applicable only to a formal document styled as agreement or contract
incorporating all the terms and conditions governing totality of supplies made
from time to time. Contractual
documents normally exchanged between buyer and seller in commerce such as order
and acceptance containing sufficient particulars of the transaction can also be
treated as 'deed of contract'.
QUESTIONS 2 (a) &(c) :
12.
They are in a way linked with the answer to question No. 1. Where the
imports fall under Tariff Heading No. 9801, the two notifications, namely
21/2002-Cus dated 1.3.2002 and 20/2006-Cus dated 1.3.2006 would come into the
picture and enure to the
benefit of the applicant in regard to the basic duty leviable under section 2
read with the First Schedule and the additional duty leviable under section 3(5)
of C.T. Act.
12.1
The relevant portion of the Notification No. 21/2002-Cus has already been
extracted. The basic customs duty
in excess of 5% has been exempted thereunder.
The goods answering the
description under column 3 of the said notification are those imported in
accordance with the Project Import Regulations, as clarified supra. Such goods, by
virtue of Sl. No. 399, item (iv) of the Table to notification No. 21/2002-Cus,
will be eligible for exemption to the extent of the duty as is in excess of 5%.
Accordingly, Question 2(a) is answered.
12.2
Coming to the additional duty under section 3(5) of C.T. Act, it is meant
to counter-balance the sales tax, value added tax, local tax or any other
charges for the time being leviable on like article on its sale, purchase or
transportation in India. The
maximum rate of additional duty that can be imposed under this sub-section is
4%. In exercise of the powers under
section 25(1) of the Customs Act, the Central Government issued Notification No.
20/2006-Cus exempting, inter alia, "the goods specified in item (iv) and item
(vi) against Sl.No. 399 of the Table" annexed to the Notification No.
21/2002-Cus from additional customs duty leviable under section 3(5). Item (iv) is goods required for Power Generation Projects
including gas turbine power projects (excluding certain captive power plants).
It is again made explicit that this exemption will be attracted only if the said
goods imported fall within the Tariff Heading 9801.
12.3
Once it is held that the proposed imports of the applicant fall within
tariff Heading 9801 subject to the fulfillment of the Project Import
Regulations, the rate of additional duty under section 3(5) will be nil. Accordingly, Question No. 2(c) is answered.
QUESTION 2(b) :
13.
This question which centres round section 3(1) of the CT Act has evoked
intense debate. As against the
contention of the applicant's Counsel that no additional duty under section
3(1) is liable to be paid on the components and parts of wind operated
electricity generator (which are imported under Chapter 98 alongwith the other
goods required for setting up wind Power Projects)
in view of the Central Excise Notification No. 6/2006, it is the
contention of the Sr. Departmental Representative that in respect of all the
goods involved in project import, the applicant can only claim the benefit of
reduced rate of additional duty (16%) under
the Notification No. 21/2002-Cus. Having
claimed the benefit of reduced basic customs duty in relation to such project
imports, it is not open to the applicant to fall back on some other notification
in so far as the additional duty on some of the goods is concerned.
13.1
In order to appreciate the controversy, let us take stock of the relevant
provisions. We have already
referred to Notification No. 21/2002-Cus at paragraph 7.2 Supra and again while
answering the question No. 2(a). The
basic or standard rate of duty specified by the said notification in respect of
goods required for power generation projects etc. falling within Chapter 9801 is
5% and the additional duty specified is 16%.
The basic duty and additional duty in
excess of the aforementioned rates stand exempted under the said notification.
If the matter stood there, there would be no difficulty in holding that
the additional duty exemption cannot go beyond 16%.
But, the answer to the question cannot be found within the four corners
of this notification. Primarily, we
have to see the charging section governing the additional duty.
13.2
Section 3(1) of the Customs Tariff Act in so far as relevant for our
purpose is as follows :
"Any
article which is imported into India shall, in addition, be liable to a duty
(hereafter in this section referred to as the additional duty) equal to the
excise duty for the time being leviable on a like article if produced or
manufactured in India and if such excise duty on a like article is leviable at
any percentage of its value, the additional duty to which the imported article
shall be so liable shall be calculated at that percentage of the value of the
imported article :"
(Proviso omitted).
"Explanation
: In this sub-section, the expression "the excise duty for the time being
leviable on a like article if produced or manufactured in India" means the
excise duty for the time being in force which would be leviable on a like
article if produced or manufactured in India or, if a like article is not so
produced or manufactured, which would be leviable on the class or description of
articles to which the imported article belongs, and where such duty is leviable
at different rates, the highest duty."
13.3
A five Judge Bench of the Supreme Court in the case of Hyderabad
Industries Limited vs. Union of India 1999 (108) E.L.T. 321
had occasion to consider Section 3(1) of C.T. Act. B.N. Kirpal, J (as he
then was) who wrote the judgment for himself and two other learned judges, after
having referred to section 12 of
the Customs Act and sections 2 & 3 of the Customs Tariff Act analyzed and
delineated the scope of section 3(1).
The following observations are worth quoting:
"Section 3(1) of the Customs
Tariff Act, 1975 provides for levy of an additional duty.
The duty is, in other words, in addition to the customs duty leviable
under Section 12 of the Customs Act read with Section 2 of the Customs Tariff
Act. Secondly this duty is leviable
at a rate equal to the excise duty for the time being leviable on a like article
to the one which is imported if produced or manufactured in India.
The explanation to this sub-section expands the meaning of the expression
"the excise duty for the time being leviable on a like article if produced or
manufactured in India".........."
In paragraph 14, the Court enumerated various types of customs duty
leviable under the two Acts and observed thus :
".........Customs
Act, 1962 and the Customs Tariff Act, 1975 are two separate independent
statutes. Merely because the
incidence of tax under Section 3 of the Customs Tariff Act, 1975 arises on the
import of the articles into India it does not necessarily mean that the Customs
Tariff Act cannot provide for the charging of a duty which is independent of the
customs duty leviable under the Customs Act."
In
paragraph 17, it was observed :
".........On
a correct interpretation of the relevant provisions of the two Acts there can be
no manner of doubt that additional duty which is levied under Section 3(1) of
the Tariff Act is independent of the customs duty which is levied under Section
12 of the Customs Act........"
The character and object of additional duty under section 3(1) has been
explained as follows :
"........Even
though the impost under Section 3 is not called a countervailing duty there can
be little doubt that this levy under Section 3 is with a view to levy additional
duty on an imported article so as to counter-balance the excise duty leviable on
the like article indigenously made. In other words Section 3 of the Customs Tariff Act has been
enacted to provide for a level playing field to the present or future
manufacturers of the like articles in India".
14.
It is thus settled by the decision of the Supreme Court in Hyderabad
Industries case that section 3(1) of the CT Act is an independent charging
provision. The liability to pay
additional duty under section 3(1) is co-related to the Central Excise duty
"for the time being leviable" on
an article similar to the one imported if it is to be manufactured in India. Therefore, if any notification is issued under the Central
Excise Act, exempting or reducing the duty, that should be taken into account
for the purpose of ascertaining the liability to pay additional duty under
Section 3(1) of CT Act. If under
the said notification, the rate applicable is nil for a similar article
manufactured in India, the importer need not have to pay any additional duty
under section 3(1) because no excise duty is leviable at the relevant point of
time. The liability to pay the
additional duty has to be first judged on the terms of section 3(1) itself read
with the relevant provision/notification under the Central Excise Act. The next step is to see whether there is a notification
issued under Section 25 of the Customs Act exempting or reducing the additional
duty under CT Act. In either case,
the importer can avail of the benefit.
14.1
That is how the provisions of the Central Excise Act including the
notification issued thereunder would assume importance in the context of the
computation of additional customs duty. The
applicant relies on the Central Excise Notification No. 6/2006 to contend that
the rate of duty on the components and parts of wind operated electricity
generator is nil and therefore the rate of additional customs duty should also
be nil.
14.2 We shall now refer to Central Excise Notification
No. 6/2006.
"Exemption
and effective rate of duty for specified goods of Chapters 84 to 96. - In
exercise of the powers conferred by sub-section (1) of section 5A of the Central
Excise Act, 1944 (1 of 1944), the Central Government, on being satisfied that it
is necessary in the public interest so to do, hereby exempts the excisable goods
of the description specified in column (3) of the Table given below read with
the relevant List appended hereto, as the case may be, and falling within the
Chapter, heading or sub-heading or tariff item of the first Schedule to the
Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the
Central Excise Tariff Act), as are
given in the corresponding entry in column (2) of the said Table, from so much
of the duty of excise specified thereon under the First Schedule to the Central
Excise Tariff Act, as is in excess of the amount calculated at the rate
specified in the corresponding entry in column (4) of the said Table and subject
to the relevant conditions specified in the Annexure to this notification, and
condition number of which is referred to in the corresponding entry in column
(5) of the Table aforesaid :
Table
S.No.
|
Chapter or Heading or sub-Heading or
tariff item of the First Schedule.
|
Description of excisable
goods
|
Rate
|
Condition
No.
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
---
|
---
|
-------
|
--
|
--
|
84.
|
Any
Chapter
|
Non-conventional
energy devices/ systems specified in List 5
|
Nil
|
--
|
---
|
---
|
-------
|
--
|
--
|
LIST
5
........(13)
Wind operated electricity generator, its components and parts thereof including
rotor and wind turbine controller......."
14.3
On a reading of item 13 of List 5, it is clear that not merely the
generator (wind operated) but also its components and parts including rotor and
wind turbine controller qualify for exemption.
Wind operated electricity generator produces non-conventional
energy. That is why it is listed
alongwith other items producing such energy.
Another point to be noticed is that
in regard to most of the other items in List 5, components and parts of the
energy producing devices/systems are not specifically mentioned as in the case
of wind operated electricity generator. We
are adverting to this fact for the reason that the applicant is not importing
the wind operated electricity generator as a unit or in assembled condition, but
it is only importing the components and parts of wind operated electricity
generator to be used in the manufacture of ultimate product i.e. wind operated
power generator. According to the information furnished by the applicant
pursuant to the directions of the Authority, most of the goods enumerated in
Annexure J are components and parts of wind operated electricity generators.
However, we make it clear that we are not scanning each and every item in
order to see whether they are such components and parts. That exercise has to be
done by the appropriate authority. Only
such of the articles which can be treated as components and parts of wind
operated electricity generator would qualify for exemption under the Central
Excise Notification referred to Supra.
15.
Broadly stated, the manufacture of goods which facilitate the production
of non-conventional energy have been given complete exemption under C.E.
Notification No. 6/2006. What then
is the impact of such notification vis-a-vis the additional customs duty under
section 3(1)? In our view, it adds
a new dimension to the entire issue. When
there is no liability to pay the additional duty by virtue of the operation of
charging provision i.e. section 3(1) read with the Central Excise provisions, in
our view, the liability to any extent cannot be fastened on the importer, by
taking resort to the notification issued under the Customs Act.
In other words, 16% additional duty prescribed in column 5 of
Notification No. 21/2002-Cus cannot be given effect to in a situation where the
importer has no liability to pay duty on the terms of the charging provision
itself. To elaborate, the benefit
which accrues to the importer by virtue of the application of the criteria laid
down in section 3(1) cannot be taken away by taking recourse to the Notification
issued under section 25 of Customs Act. The
maximum rate specified in the notification which is in the nature of subordinate
legislation cannot be projected into section 3(1) if the article is otherwise
not chargeable to duty under the charging section itself.
16.
What follows therefore is this : If all or some of the articles imported
under Chapter 9801 in accordance with Project Import Regulations fall within the
description of wind operated electricity generator, its components and parts
mentioned in List 5 (Sl.No. 84) appended to Central Excise Notification No.
6/2006, the importer will be out of the net of additional duty imposed by
section 3(1) of C.T. Act. Can it be
said in the instant case that the goods proposed to be imported do not fall
within the description of components and parts of wind operated electricity
generator? If the answer is in the
negative, as it ought to be, there is no way by which the importer can be denied
the benefit of exemption. The goods
required for power generation project may be of wider range and sweep than the
wind operated electricity generator and its components and such goods may not
qualify for exemption under the Central Excise Notification No. 6/2006.
But, that cannot provide a legitimate ground to deny exemption to such of
the goods which squarely fall within the description given in the Central Excise
notification. There is
no dichotomy between the goods required for power generation project (excluding
captive power plant) and wind operated electricity generator and components
parts thereof. The relief cannot
also be denied on the ground that the benefit of concessional basic duty was
claimed under a customs notification and the same notification puts a cap on the
quantum of additional duty leviable.
17.
To fortify our view point, we would like to embark on a further analysis
of the problem by getting down to the specifics of the issue.
17.1
The gist of the charging provision contained section 3(1) of C.T. Act is
this:
17.2
Any article imported into India shall be liable to the additional duty
equal to the excise duty for the
time being leviable on the like article if produced or manufactured in India.
17.3
To resolve the present issue, the questions to be asked and answered are
the following :
1st
Question: What are the articles proposed to be imported?
Answer
: Broadly those falling within
the description given in column 2 of Tariff heading 9801, that is to say, items
of machinery, instruments, appliances, apparatus, components etc. which are
required for the initial setting up of a power project.
They include components and parts of wind operated electricity generator.
2nd
Question: What is the excise duty for the time being leviable on the said
articles if manufactured in India?
Answer
: In so far as the components
and parts of wind operated electricity generator are concerned, the duty will be
nil in view of Notification No. 6/2006-CE.
In regard to other articles imported under Chapter 9801, the Central
Excise duty is payable at varying rates.
3rd
Question: What then will be the
quantum or rate of additional customs duty under section 3(1) of the C.T. Act?
Answer
: (a) In relation to the
components and parts of wind operated electricity generator no additional duty
is leviable under section 3(1) because no excise duty is leviable on such
articles by reason of Notification
No. 6/2006-CE.
(b) In regard to the other items imported under Tariff Heading 9801, the
additional duty applicable would be not more than 16% (vide
Notification No. 21/2002-Cus).
17.4
In the case of (a), the benefit of nil duty accrues to the importer by
the application of the criterion or measure provided by the section itself i.e.
section 3(1) read with the Central Excise notification.
In
the case of (b), the benefit of lesser rate of 16% accrues by virtue of
Notification No. 21/2002-Cus issued under section 25(1) of the Customs Act.
But for this notification, some of the goods required for power
generation projects if manufactured in India would have attracted Central Excise
duty at a rate higher than 16%.
18.
There is no legal bar to the importer getting the benefit of duty relief/
concession under two different provisions.
On the other hand, if the benefit is denied to the importer on the ground
that for some of the goods specified in the same heading partial relief has been
granted under a customs notification, it would amount to ignoring the mandate of
charging section 3(1) and placing the notification on a higher pedestal.
The fact that the goods in question form part of the project import
series is not a ground to avoid application of the criterion prescribed by
section 3(1).
19.
As already noted, according to the learned Departmental Representative, the
entirety of imported goods falling under Tariff Heading 9801 and compendiously
known as 'project imports' should be given the same treatment in the
application of duty rates and a greater benefit/relief cannot be accorded to
some of the individual items forming part of the imported series.
We find it difficult to accept this contention, though plausible it is.
The discussion in the preceding paragraphs is an answer to the contention
of the Departmental Representative. If
the contention of Department is accepted, it would amount to stifling the
operation of section 3(1) and failing to give full effect to its language.
Once it is found that all or some of the goods imported under 9801 are
not exigible to Central excise duty if they had been manufactured in India, the
additional customs duty is not leviable, on the terms of the charging section
3(1). That section cannot be denuded of its full effect and content on the
reasoning that the basic duty exemption was availed of under a customs
notification which also granted partial relief of additional duty.
We reiterate that there is no anomaly or legal bar against some of the
goods getting the additional duty relief under the Customs notification and the
other goods getting relief by reason of the fact that the central excise duty is
not leviable on like goods manufactured in India.
20.
The theory of double advantage implicit in the argument of the
Departmental Representative has to be eschewed as a plea without legal basis.
In this context, we would like to refer to a Division Bench decision of
Nagpur High Court in CP & Berar Provincial Corporation Bank vs. CIT (14 ITR
Page 479). In that case, the
assessee - Bank borrowed money for the purpose of investing in tax free and
taxable securities and had to pay interest on the money so borrowed.
It was held by the High Court that under the first proviso to section 8
of the Indian Income Tax Act, 1922, the whole of interest on such part of
borrowed capital as was expended on the purchase of both types of securities
should be deducted. It was also
held that under the second proviso the whole of the interest receivable on the
tax free securities should be excluded in addition to the deduction in respect
of the interest on borrowed capital. The
Court observed, after referring to Lord Wright's judgment, in Hughes vs. Bank
of New Zealand (6 ITR Page 541), "..... there is no reason why the tax payer
should not get a double advantage if that can reasonably be spelled out of an
enactment". In Hughes's case,
the contention of the Revenue that the assessee cannot get double advantage by
getting the benefit of exemption under a particular provision and at the same
getting the advantage of deducting the expenses attributable to the earning of
the exempted income, was rejected, on the plain language of the relevant
section.
21.
The issue can also be examined from the point of view of the objective of
the section and the notification. The
object of section 3(1) of C.T. Act as clarified by the Supreme Court is to
counter-balance the impact of excise duty that would fall on Indian
manufacturers. The idea is to
subject the imports to the additional duty equal to the central excise duty
leviable for the time being on similar goods manufactured in the country.
At the same time, it is not the intention of the legislature that the
additional duty should be paid on the imported articles irrespective of the fact
that similar articles manufactured in India are exempt from central excise duty.
The objective behind the Central excise notification was to provide
incentives to those setting up non-conventional energy plants.
Not levying additional customs duty in respect of goods imported for
setting up non-conventional energy based power projects would better promote
this objective.
21.1
Thus, going by the plain language of section 3(1) or the object thereof,
the components and parts of the wind operated electricity generator which the
applicant wants to import in order to set up a power plant by harnessing wind
energy does not attract additional duty under section 3(1) of the C.T. Act.
22.
The decisions of Madras High Court and of Supreme Court relied upon by
the Sr. Departmental Representative will not be of any help in supporting the
stand of the Revenue.
22.1
The decision of the Madras High Court in Appraiser, Madras Customs vs.
Tamilnadu Newsprint Papers Ltd. (36 E.L.T. 272) has no bearing on the present
case. Firstly, section 3(1) of the
Customs Tariff Act or equivalent provision did not come up for consideration at
all in that case. Two points that
arose for consideration were (i) Whether Customs Notification No. 61 or 62/83
would apply in respect of certain
goods imported in accordance with the Project Import Regulations.
It incidentally raised the question whether tariff item 84.66 or 84.31
was more appropriate? (ii) What is the scope of the exemption granted under
Notification No. 217-Cus. As the notification specifically referred to a particular
heading, it was held that the exemption does not cover another heading though
the nature of the goods is broadly the same under both the headings.
22.2
The above decision was affirmed by the Supreme Court in (2000) 116 E.L.T.
3. The Supreme Court did not,
however, go into the main question addressed by the High Court.
The Supreme Court's conclusion rests on the following observations :
"Having
so obtained that benefit by claiming the imported machinery to be covered by
tariff item 84.66, it was not open to the appellant later on to canvass much
less claim that the machinery in question is covered by Tariff item 84.31, for
receiving the benefit of total exemption under Notification 62/83 and that it is
not liable to pay auxiliary duty at the reduced rate of 20% on goods falling
under Tariff item 84.66 under Notification No. 61/83."
"In
the established facts and circumstances of the case, the appellant was not
end to the benefit of total exemption from payment of auxiliary duty under
Notification 62/83 as rightly held by the Division Bench."
No such situation as pointed out by the Supreme Court arises here.
23.
Another decision relied upon by the learned Departmental Representative
is that of the CESTAT, South Zonal Bench reported in 2006 (203) E.L.T. 287.
23.1
The question there was whether the 'steam turbine' can be brought
within the ambit of item 16 of List 9 of a similar C.E. notification. It was held that steam turbine by itself does not produce
energy and therefore do not fall within the description 'waste conversion
devices producing energy'. Item
13 with which we are concerned is of wider import.
As already noticed, not only the finished product, namely, wind operated
electricity generators but also its components and parts including rotor and
wind turbine controller are specifically mentioned.
As regards the observations of the learned Tribunal that wherever the
legislative Authority intended to give liberty to an importer under any
exemption notification of their choice, such intent would have been expressed
explicitly, we must say that it is too broadly stated.
The Tribunal was interpreting a notification which specifically enabled
the importer to claim relief under any other notification.
The observations of the Tribunal must be confined to and understood in
that context. In any case, section
3(1) of the Customs Tariff Act did not come up for consideration in that case.
23.2
The order of CEGAT, West Zonal bench reported in 2002 (145) E.L.T. 546
cited by the learned Departmental Representative was concerned more with the
issue of rectification of mistake. Following
the decision of Supreme Court in Tamilnadu Newsprint case, the earlier order was
recalled. Beyond that, we do not
have any indication of the crucial issue involved therein.
24.
In the light of the foregoing discussion, we rule that Question No.
2(b) should be answered affirmatively to the extent that the applicant will
be eligible for exemption from the whole of additional customs duty leviable
under section 3(1) of the Customs Tariff Act in respect of the parts and
components of wind operated electricity generators imported by the applicant for
the purpose of setting up independent
power projects by harnessing wind energy. It
is clarified that in regard to the other items imported under Tariff Heading
9801, the additional duty applicable will be the central excise duty in force,
subject to a ceiling of 16%.
25.
The questions are thus answered in the manner set out in paragraphs 10,
12.1, 12.3 and 24, subject to the clarifications/qualifications set out therein
or the text of the order.
Accordingly, the ruling on the three questions is given and the
application is disposed of.
Pronounced
in the open Court of the Authority on this 15th day of May, 2007.
Sd./-
Sd./-
Sd./-
(A.
Sinha)
(P.V. Reddi)
(Chitra Saha)
Member
Chairman
Member
Registered /A D
F.
No. AAR/17(Cus)/2006
Dated 15th May,
2007
(A)
This copy is certified to be a true copy of the Ruling and is sent to :-
1.
M/s Enercon (India) Limited, Kolsite House, Plot No. 31, Shah Industrial
Estate, Veera Desai Road, Andheri (West), Mumbai-400053.
2.
Commissioner of Customs (Import), Jawahar Lal Nehru Custom House, Nhava
Sheva, Tal : Uran Dist : Raigad, Maharashtra-400707.
3.
Mr. Deepak Garg, Senior Departmental Representative, Customs, Excise
& Service Tax Appellate Tribunal, West Block-2, R.K.Puram, New Delhi-66.
4.
Individual folders of Hon'ble Chairman / Members
5.
Guard File
(VIJAI KUMAR)
ADDITIONAL
COMMISSIONER
F.
No. AAR/17(Cus)/2006
Dated: 22th May, 2007
(B)
In view of the provisions contained in Rule 25 of the Authority for
Advance Rulings (Procedure) Regulations, 2005, permission of the Authority is
accorded for publication of the Advance Ruling. Copy of the Advance Ruling is
forwarded to:
1.
Centex Publications Pvt. Ltd., 1512-B, Bhishma Pitamah Marg,
Opp. ICICI Bank of Defence colony,
New Delhi-110 003
2.
Deeparchie Publications, M-93, Marg-46, Saket, New Delhi-110 017
3.
Excise & Customs Cases,
B-37, Sector-1, Noida-201301 (U.P.)
4.
Taxindiaonline.com Private
Limited., B-XI/8183, Vasant Kunj, New Delhi-110 070
5.
Cen-Cus Publications, B-37,
Sector-1, Noida-201301
6.
Taxmann Allied Service Pvt.
Ltd, 59/32, New Rohtak Road, New
Delhi-110005.
7.
www.allindiantaxes.com, 803, Kirti Shikhar, District Centre,
Janakpuri, New Delhi-110058
(VIJAI KUMAR)
ADDITIONAL
COMMISSIONER
|