2015 (2) TMI 375

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....- on the importer M/s. Atlanta Infrastructure Ltd. under the provisions of Section 114A of the Customs Act, 1962 and a penalty of Rs. 15 lakhs on Shri Rajhoo Barot, Managing Director of the importer-firm. Aggrieved of the same, the appellants are before us. 3. Facts relevant to the case, briefly, are as follows: 3.1 The appellant M/s Atlanta Infrastructure Ltd., (AIL for short) imported one unit of Metso Minerals (Nordberg) Stone Crushing (Cone Type) Plant, Model No. LT1100 with accessories, having an assessable value of Rs. 3,56,93,400/- vide Bill of entry No. 512887 dated 16/11/2004 and one unit of Linnhoff Mobile Asphalt Batch Type Hot Mix Plant with pollution control system at 124 TPH capacity, Model TSD 1500 with accessories valued at Rs. 2,19,52,198/- under Bill of Entry No. 528443 dated 03/01/2005. The appellant claimed the benefit of Notification No. 21/2002 dated 01/03/2002 (serial No. 230, List No. 18 Condition NO. 40). At the time of importation of the stone crushing plant the appellant furnished copies of work-orders from MMRDA for the widening and construction of Western Express Highway from Asha Nagar subway to Kulupwadi pedestrian subway to SN. Dubey Road junction ....

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....cts and it was revealed that after using the stone crushing plant up to November 2006, it was shifted to Nagpur for use in a contract awarded to M/s. Balaji Tollways ltd. Similarly, the hot mix plant imported in January 2005 was not used for the project awarded by the Government of Gujarat but was used for some other projects up to May 2006 and thereafter, they were deposited in the Equipment Bank of India Infrastructure Equipment Ltd., New Delhi in June 2006 on a rental consideration of Rs. 4.75 lakhs effective from 20/08/2005. 3.5 In view of the diversion of the imported equipment for other purposes and also MMRDA was not one of the approved agencies for award of contracts for construction of roads, the department issued a show cause notice dated 13/06/2008 proposing to deny the benefit of Notification 21/2002-Cus dated 01/03/2002 and proposing to recover the differential duty of Rs. 1,44,11,453/- on the stone crushing plant and Rs. 88,63,329/- on the hot mix plant along with interest thereon under the provisions of Section 28 of the Customs Act,1962, read with bonds/undertaking executed by the appellant at the time of import. It was also proposed to impose penalties on the appe....

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....Customs Appeal No. 967-968/2009 dated 12/09/2013 refused to answer the reference and rejected the same on the ground that there is no conflict between the decision of the Tribunal in the Patel Engineer Ltd. (2012) CESTAT 438 SCC ONLINE and Shreeji Constructions where it is concluded that the MMRDA is not a road construction corporation within the meaning of the said expression under condition No. 40(a) of the Notification 21/2002-Cus. He further submits that the decision in the case of Shreeji Constructions was followed in the case of Relcon Infraprojects Ltd. in final order No. A/157/14/CSTB/CI dated 06/02/2014 and, therefore, this decision has become final. 5.1 The learned Additional Commissioner (AR) further points out that as per the terms and conditions of the Notification 21/2002, the appellant was required to use the imported machinery for the contracts awarded to them at the time of importation of machinery and by themselves, for a period of five years. In the present case, the machinery after use for a period of 1 ½ years, were diverted elsewhere by renting out the same for monetary consideration. Similarly, in respect of the hot mix plant, the appellant at the tim....

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....rted. The stone crushing plant was diverted for use in respect of contract awarded to M/s. Balaji Tollways Pvt. Ltd. for construction work in the Nagpur area. Similarly, the hot mix plant also was rented out to Indian Equipment Infrastructure Pvt. Ltd. for a monthly consideration of Rs. 4.75 lakhs per month. Notification No. 21/2002-Cus envisaged the importer undertake to use the imported goods exclusively for the construction of roads by himself and he shall not sell or otherwise dispose of the said goods in any manner for a period of five years from the date of importation. In the present case, it is an admitted position that after using the equipment for a period of 1 to 1 ½ years, the imported goods were diverted for use by others, namely M/s. Balaji Tollways Pvt. Ltd. and by Indian Equipment Infrastructure Ltd. In other words the appellant did not utilise the goods for a period of five years for the construction of roads by himself. Thus, there is a clear violation of the post-importation condition. 6.3 It is a settled position in law that an exemption Notification has to be construed strictly, the same being in the nature of an exception. Inasmuch as the conditions of....