TaxTMI 
TaxTMI 
2013 (4) TMI 598
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....ove" subject to condition No. 40. The said condition stipulated that the goods shall be imported by a person who has been awarded a contract for the construction of roads in India by the National Highways Authority of India among others or by a person who has been named s a sub-contractor in the contract referred to above. The assessing officer passed a speaking order dated 11-5-2010 denying the benefit of exemption on the following grounds. He observed that the equipment imported by the appellant has a base width of 3 meters only with hydraulic extension upto 6 meters and mechanical expansion upto 9 meters. Since the notification specified that the device should have width 7 meters and above, the assessing officer held that the equipment under importation did not satisfy the description specified in the notification. He further observed that in the instant case the contract was awarded by M/s NHAI to M/s Gorakhpur Infrastructure Company Ltd. (GICL in short) and the contract did not mention M/s Gammon as a sub-contractor as envisaged in the said notification. Accordingly he denied the benefit of duty exemption. The appellant preferred an appeal against the said order or assessment ....
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.... m size and above." The size referred to is the size of the equipment and minimum size requirement is 7 meters. From the product catalogue, it is evident that the base width of the equipment is 3 meters and with telescopic tubing the width can be raised to 6 meters. Only with bolt-on additions, the width can be raised to 9 meters. It is, therefore evident that the minimum size of the equipment under import is 3 meters and not 7 meters as specified in the notification. Therefore, the goods in question does not satisfy the specifications for the equipment for concessional duty and hence the lower authorities have correctly denied the exemption. 2) To be eligible for duty exemption, the appellant should have been awarded a contract for road construction by NHAI or should b e named as a sub-contractor in the contract awarded by NHAI. In the present case, the contractor has been awarded to M/s GICL. The appellant's name does not figure as a sub-contractor in the contract awarded by M/s NHAI to M/s GICL. Merely because the appellant is a lead member of the consortium, the appellant cannot be considered as a sub-contractor. Accordingly, the appellant does not satisfy condi....
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.......................... CONDITIONS 40 If,- (a) the goods are imported by- (i) the Ministry of Surface Transport, or (ii) a person who has been awarded a contract for the construction of roads in India by or on behalf of the Ministry of Surface Transport, by the National Highway Authority of India, by the Public Works Department of a State Government or by a road construction corporation under the control of the Government of a State or Union Territory; or (iii) a person who has been named as a sub-contractor in the contract referred to in (ii) above for the construction of roads in India by or on behalf of the Ministry of Surface Transport, by the National Highway Authority of India, by Public Works Department of a State Government or by a road construction corporation under the control of the Government of a State or Union Territory; (b) ......................................................................................................... (c) ........................................................................................................ 5.2 From a plain reading of th....
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....lassic statement: "In a taxing statute one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." Applying the above principle to the facts of the present case, the equipment under import does not fall under the category of sixe 7 meters and above specified in List 18 serial no. 2 of the notification and we hold accordingly. 6. The next issue for consideration is whether the appellant is eligible to claim the duty exemption in terms of sub-clause (iii) of clause (a) of condition 40. The contract in this case was awarded by NHAI to the consortium M/s GICL which comprises the appellant, M/s Gammon India Ltd. as its lead member with two other members. The appellant's name is not mentioned as a sub-contractor in the concession agreement dated 6th October 2006 entered into between NHAI and M/s. GICL. As per definitions at clause 1.1 of the agreement, "Agreement" means this Agreement, the Schedules "A" through "X" hereto, the Request for proposal (RFP) document issued by NHA....
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....e deemed as a sub-contractor. This argument is totally illogical and unacceptable for the following reason. Firstly the MOU was reached among the members of the consortium for forming a Special Purpose Vehicle with shareholding commitments expressly stated. Secondly the MOU was reached with respect to each member's rights and obligations towards each other and their working relationship. By no stretch of imagination, this MOU can be considered as a sub-contract. A sub-contract has to be between the main Contractor who is M/s GCIL on the one hand and the appellant, M/s GIL, on the other spelling out the terms and considerations for the contract and such sub-contractor has to be named specifically in the concession agreement between NHAI and M/s GICL. That is not the position obtaining in the present case. As per the terms of the notification a person has been named as sub-contractor in the contract referred in (ii) above, that is in the contract between NHAI and M/s GICL in the instant case. The word "named" signifies "to make reference to or speak about briefly but specifically" (ref. webster's online dictionary). In other words, the appellant should be specifically named or design....
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.... to the decision of the hon'ble apex court in appellant's own case cited supra. The facts of the said case are reproduced verbatim from the Tribunal's decision reported in 2003(156) ELT 883 Tri. Mum below:- "1. Gammon India Ltd., Mumbai, the respondent to this appeal, and Atlanta Infrastructure Ltd., Mumbai, entered into a joint venture agreement on 18th September, 2000. The agreement was entered into for the purpose of tendering a bid to the National Highway Authority of India in order to secure the contract for construction of the stretch from 31.40 kilometres on National Highway 5. The venture provided for financial responsibilities of each party in the form of guarantees, securities etc., to the extent of 50% of project value, for setting up a management board to manage the venture, composed of a Chairman and Director to be appointed by Gammon India Ltd. and a Joint Chairman and another Director to be appointed by Atlanta Infrastructure Ltd. It provided that the parties shall be jointly and severally liable to the National Highway Authority of India for execution of contract. It designated Gammon India Ltd. to be the lead partner to the venture. ....
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....ex court. In the said case, the hon'ble apex court framed the question for consideration as follows:- "12 The short question for determination is whether import of the specified machine by Gammon can be considered to be an import "by a person who has been awarded a contract for construction of the roads in India", so as to fulfill condition No.38, laid down in Exemption notification No.17/2001-Cus, dated 1 st March, 2001?". 6.7 After hearing both the sides, the hon'ble apex court held as follows in paras 20 and 21 thereof. "20. The argument was that since a joint venture has been declared to be a legal entity in New Horizons (supra), it squarely falls within the am bit of the said definition of the word "person". We are of the opinion that even if the stated stand on behalf of the appellant is accepted, mercifully, on stark facts at hand, it does not carry their case any further. Neither was it the case of the appellant either before the Adjudicating Authority or before the Appellate Authority or before us, nor is it suggested by the documents viz. the supply order or the bill of entry, that the import of the machine was by or on behalf of the joi....