TaxTMI 
TaxTMI 
2013 (12) TMI 1146
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....ssable value as Rs. 2,56,81,472/- by claiming the exemption at Sr. No. 230 of the Customs Notification No. 21/2002, dated 1-3-2002, thereby availed the exemption from payment of duty under said Notification. The appellant filed a copy of contract from MMRDA for construction of "Road network strengthening - Santacruz-Chembur link road (SCLR) and undertaking to use the 'paver finisher' exclusively for construction of roads and that it will not sell or dispose of the said 'paver finisher' in any manner for a period of 5 years from the date of import. 3. On intelligence, SIIB import found that the appellant are engaged in the act of evasion of customs duty by diverting the imported goods to other entities which before the completion of the five years from the date of import and thereby have violated the condition of Notification. Therefore, further investigations were conducted and it was found that the said 'paver finisher' was found in Ligiri Pukhari near Jorhat airport in Assam. In investigation, it was found that the model, engine no. of the said 'paver finisher' was of the same 'paver finisher' which was imported by the appellant and it was ascertained that the said 'paver....
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....work for failure to clear the site by removing the encroachment. (h) In any event, it is not disputed that the department was fully aware that the appellants imported the goods against the contract of MMRDA at the time of assessment. The appellants cannot be held guilty of suppression of contract with MMRDA. (i) It is submitted that condition 40(a) is a threshold condition. It is not a post-importation condition. Section 28 will apply in the event, it is held that there was violation of condition 40(a). Section 12 of the Customs Act, 1962 will not apply in a situation of this nature. (j) It is submitted that if the department now takes a view that the appellants did not satisfy the threshold condition, the demand under Section 28 is clearly barred. The department was fully aware of the fact that the imported paver was against the contract awarded by MMRDA. The appellants cannot be held guilty of suppression of these facts. Extended period under Section 28 cannot be invoked. (k) It is submitted that an importer is eligible to the benefit of the notification once he has a contract with the....
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....cation itself. The notification has no separate condition that apart from giving an undertaking at the time of import, the importer shall fulfil the terms of the undertaking subsequent to the import. There are numerous other exemption notifications where either an undertaking or a bond is prescribed and in addition, there are also separate conditions which require fulfilment of the terms of the undertaking or bond. For example, in DEEC Notification No. 30/97-Cus., dated 1-4-1997 there is a condition that the importer has to execute a bond under clause (ii) thereof and there is a separate condition under clause (v) to discharge the export obligation. Executing a bond is a pre-import requirement under the first condition, whereas discharging the export obligation is a post-import condition which is a separate condition. Violation of the pre-import condition would result in the denial of the exemption notification at the time of import, whereas violation of the post-import condition would enable the customs authorities to take action under Section 111(o) of the Customs Act, 1962. 9. There is yet another example of an exemption u....
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....he Hon'ble Apex Court in the case of Gammon India Limited - 2011 (269) E.L.T. 289 (S.C.) that : 24. Before parting, we wish to place on record our deep concern on the conduct of the two Benches of the Tribunal deciding appeals in the cases of IVRCL Infrastructures & Projects Ltd. (supra) & Techni Bharathi Ltd. (supra). After noticing the decision of a Co-ordinate Bench in the present case, they still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment, thereby creating a judicial uncertainty with regard to the declaration of law involved on an identical issue in respect of the same Exemption Notification. It needs to be emphasized that if a Bench of a Tribunal, in identical fact-situation, is permitted to come to a conclusion directly opposed to the conclusion reached by another Bench of the Tribunal on earlier occasion, that will be destructive of the institutional integrity itself. What is important is the Tribunal as an institution and not the personality of the members constituting it. If a Bench of the Tribunal wishes to take a view different from the one taken by the earli....
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....ruction of roads. (u) It is submitted that use of expression "required for" makes it clear that exemption is available if the imported goods are intended for use in construction of road. Its actual use is not contemplated. (v) In any event, in the present case the appellants used the imported paver for its intended use viz. SCLR project and once it is put to intended use, the conditions of the notification stand fully complied with. (w) The Hon'ble Apex Court in its judgment in the case of State of Haryana v. Dalmia Dadri Cement Ltd. - 2004 (178) E.L.T. 13 (S.C.) held that : 10. We are unable to accept the submission of Mr. Bana that, in order to get the exemption it must be shown that the goods in question, namely, the cement supplied by the assessee in this case was actually used in the generation or distribution of electrical energy. It must be noted that the important words used in the relevant provisions are goods for use by it in the generation or distribution of such energy (emphasis supplied by us). On a plain reading of the relevant clause it is clear that the ....
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....used in similar exemption Notifications have also been construed by this Court earlier in the State of Haryana v. Dalmia Dadri Cement Ltd. - 1987 (Suppl) SCC 679 to mean 'intended for use'. According to this decision the object of grant of exemption was only to debar those importer/manufacturers from the benefit of the Notifications who had diverted the products imported for other purposes and had no intention to use the same for manufacture of the specified items at any stage." (y) It is submitted that record clearly show that imported paver was taken to SCLR project and used there. The condition of notification is fully complied with. Once, the imported paver is put to intended use, its subsequent use for other projects does not result in denial of exemption. (z) It is submitted that the appellants did not sell or otherwise dispose of the said goods, in any manner, for a period of five years from the date of their importation. (aa) The paver imported by the appellant continues to be owned and possessed by the appellants. (bb) It is not the case of the department that the appellants sold the imported paver to either Unite....
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....ure, prescribed by the Assistant Commissioner of the Customs having jurisdiction, for transport of the said goods from donor to his premises and such goods shall not be used for commercial purposes, and shall not be sold, disposed of, gifted, loaned, exchanged or parted with without the permission of the said Assistant Commissioner within the five years from the date of the receipt of the said goods to him from the donor. (gg) Notification No. 258/90 dated 23rd October, 1990, condition (ii) provide as under : (ii) the importer shall not part with the motor car within a period of 5 years from the date of importation by way of sale, transfer, loan or in any other manner and the importer gives an undertaking to this effect, to the Assistant Collector of Customs, Amritsar at the time of clearance of the car; (hh) In any event and assuming without admitting that the use of the paver at the ONGC site at Assam is not for construction of road, it is submitted that even going by the statement of Mr. Rajib Nath of M/s. Nicco Corporation, the imported paver is used for 'Dry Lean Concrete and Pavement Quality Concrete is for about 8000 square meter.' (ii)&nb....
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.... the time of import and therefore Section 111(o) has no application in the facts of the present case. In any event, no penalty can be imposed in the facts of the present case under Section 112(a) of the Act. 5. Apart from the above contentions, he also relied on C.C.E. v. Sameer Gehlot - 2011 (263) E.L.T. 129 (T-Del.) and UOI v. Rai Bahadur - 1969 (1) SCC 91, BSP Display Devices - 2004 (174) E.L.T. 5 (S.C.), Steel Authority of India - 1996 (88) E.L.T. 314 (S.C.), Mediwell Hospital and Healthcare - 1997 (89) E.L.T. 425 (S.C.). 6. The contentions of the ld. counsel were strongly opposed by the ld. AR on behalf of the Revenue. He contended that as per the condition of the Notification and undertaking filed by the appellant at the time of import of paver finisher it was undertaken that the said paver finisher shall exclusively used for construction of road. As per statement recorded during the course of investigation, Mr. Rajiv Nath, Sr. Manager of M/s. Nicco Corporation Ltd. that the said paver finisher was not used for construction of road. He also strongly opposed the other grounds raised by the ld. advocate but he stressed on the violation of the undertaking give....
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.... agree with the same. It is also contended on behalf of the appellant that condition 40B is also fully satisfied at the time of import by execution of bond by the appellant to the effect that he shall use the imported goods exclusively for construction of roads and he shall not sell or otherwise dispose of the said goods in any manner for a period of 5 years for the date of importation. Therefore they have not violated the condition 40B and have rightly claimed the exemption under the above Notification as the undertaking is a pre-import condition and condition No. 40B is not a post-import condition. Therefore the appellant has not violated any condition of the said Notification and for the same he is strongly relied on the decision of Sameer Gehlot (supra). 10. We have examined the case of Sameer Gehlot (supra) and in that case it is clear cut relying by the adjudicating authority that there was no post-import contravention and that the impugned exemption has been correctly availed. Therefore, the said decision is not relevant to the facts of this case as in this case the show-cause notice has alleged that the appellant has not fulfilled the obligation undertook by the app....