2019 (11) TMI 127 - AT - Customs

Appeal dismissed due to lack of contract inclusion, executive clarification not binding.

M/s. GMR Infrastructure Ltd. Versus Commr. of Customs (Exp.), Mumbai

M/s. GMR Infrastructure Ltd. Versus Commr. of Customs (Exp.), Mumbai - 2019 (370) E.L.T. 1758 (Tri. - Mumbai) Issues Involved:1. Classification of imported goods.2. Eligibility for exemption under Notification No. 621/2002-Cus.3. Applicability of clarifications issued by the Tax Research Unit.4. Precedential value of prior tribunal decisions and Supreme Court judgments.Detailed Analysis:1. Classification of Imported Goods:The appellants filed a Bill of Entry for the clearance of 'Electronic Sensor Paver Vogel Model 1800-2 with AB 600-2-TV for laying bituminous pavement up to 9 meters along with multiplex big SKJ and its accessories,' claiming classification under CTH 84306100. The Assessing Authority denied the exemption benefit, stating the goods imported were not covered under the specified exemption, which was for 'Electronic Paver Finisher (with sensor device) for laying Bituminous pavement 7 meters size and above.' The Commissioner (Appeal) upheld this assessment.2. Eligibility for Exemption under Notification No. 621/2002-Cus:The appellants claimed the benefit of exemption under Notification No. 621/2002-Cus, which was denied on the grounds that the appellant, being a subcontractor, did not figure in the main contract between GHVPL and NHAI. The assessing authority and the appellate authority both concluded that the name of the appellant did not appear in the main contract, thus disqualifying them from the exemption.3. Applicability of Clarifications Issued by the Tax Research Unit:The appellants argued that a clarification issued by the Joint Secretary (Tax Research Unit) on 10th July 2014 supported their claim. The clarification stated that road construction machinery imported duty-free could be sold within 5 years of importation on payment of customs duty on depreciated value and that individual constituents of a consortium whose names appear in the contract could import goods under the said notification. The appellants contended that this clarification should apply to their case.4. Precedential Value of Prior Tribunal Decisions and Supreme Court Judgments:The tribunal noted that the issue was covered by the Supreme Court's decision in Gammon India Ltd [2011 (269) ELT 289 (SC)], which held that the benefit of the exemption notification could not be extended to entities not explicitly mentioned in the contract. The tribunal also referred to the Supreme Court's decision in Ratan Melting & Wires Industries [2008 (231) ELT 22 (SC)], which stated that clarifications or circulars issued by the executive are not binding on the courts if they contradict statutory provisions or judicial pronouncements.Conclusion:The tribunal concluded that the appellants were not entitled to the exemption benefit as their name did not appear in the main contract, and the issue was already settled by the Supreme Court in Gammon India Ltd. The tribunal also rejected the applicability of the subsequent clarification issued by the Joint Secretary (TRU), citing the Supreme Court's ruling in Ratan Melting & Wires Industries, which emphasized that executive clarifications cannot override judicial decisions. Consequently, the appeal was dismissed.Order:The appeal was dismissed, with the order pronounced in open court on 01.11.2019.