TaxTMI 
TaxTMI 
2015 (4) TMI 562
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....We are concerned with serial No.217 of this notification which reads as follows: "217. 84 or any other Goods specified in List 11 Nil Nil 38 Chapter required for construction of roads." The conditions by which the exemption is attracted is set out in item 38 as follows: "38. 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) the importer, at the time of importation, furnishes an undertaking to the Deputy Comm....
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....the exemption notification did not apply for two reasons. As per condition 38 of the said notification, imports have to be made by a Joint Venture Company and not by one of the partners of the said company. Secondly, the exemption applies to a complete plant that is imported and not to parts/components of such a plant. The Commissioner, therefore, held:- "14.2 Coming to the issue whether the goods imported are the complete plant or not, I find that M/s. IVRCL, placed an order for the supply of the whole plant on M/s. Marshall - Lintec, Chennai, (a Joint Venture collaboration between M/s. Marshall & M/s. Lintec, Germany). M/s. Marshall - Lintec, Chennai, entered into an agreement with M/s. IVRCL, for the supply, erection and commissioning of the plant. Therefore, the order placed on M/s. Marshall - Lintec, Chennai, was terminated since the Joint Venture Company was not finally formed and separate orders were placed on M/s. Lintec, Germany, and M/s. Marshall. M/s. Lintec, Germany was to supply certain components and one part of the plant in a fully assembled container and M/s. Marshall were to manufacture the indigenous components and assemble the imported components and the in....
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....ndition. The subject import can be considered only as a part of the plant. Therefore, the goods under import are not eligible for the duty exemption as provided under the Notification No.17/2001." 3. An appeal was carried by the appellant to CESTAT which set aside the Commissioner's reasoning on condition 38 of the notification. It held that there was in fact no Joint Venture Company formed and the Joint Venture between the appellant and M/s Shapoorji Pallonji & Company Limited was in the nature of a partnership, in which case any of the partners could import goods covered by the exemption notification. However, it agreed with the Commissioner that what had in fact been imported was not a complete plant and, therefore, it would follow that the exemption notification would not be available on this score. CESTAT held:- "10. The next issue is whether the goods imported and cleared under the Bill of Entry filed by IVRCL were eligible for the benefit of exemption in terms of Sr. No.217 of the Table (read with Item No.(1) in List-11) annexed to the Notification. It is settled law that an exempting provision under a taxing statute requires to be construed strictly vide Novopan I....
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....s supplied by Lintec. It is clear from these facts that some of the components viz. structures for the hot mix plant were supplied by Marshall, that the amount paid to them towards cost of such components and cost of assembling of Hot Mix Plant was DM 356,574, that the amount paid by IVRCL to Lintec for the components supplied by the latter was DM 550,000 and that the total cost of the hot mix plant as erected at the project site was DM 906,574. Lintec's letter to IVRCL vide Annexure-5 itself had called upon the appellants to place the necessary order with Marshall for their share of the deal of setting up hot mix plant. Only 9 containers were listed in the first annexure to that letter, which represented the "Lintec scope of supply". The second annexure to the letter, representing the "Marshall scope of supply", mentioned 2 containerised items besides structural parts. The documentary evidence is squarely in support of the Commissioner's finding that only some components of hot mix plant were imported from Germany by the appellant- company. 11. Coming to the oral evidence under Section 108 of the Customs Act, we note that it was stated by Sh. P.S. Banik of Marshall that....
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.... argued that there are concurrent findings of fact by both the Commissioner and the CESTAT that what was in fact imported was not the complete plant and since that was so, the benefit of the exemption notification would not be available. She further pointed out that there were various admissions made by the appellant as well as by persons who deposed on their behalf which would show that in any case even the essential portions of the plant had not been imported. We have heard learned counsel for the parties. We find that the first argument made by Shri Lakshmikumaran can be disposed of immediately. The subject matter before us is an exemption notification issued under Section 25 of the Customs Act, 1962. The interpretative notes that have been referred to by Shri Lakshmikumaran are in the Customs Tariff Act. Note 2(a) referred to by Shri Lakshmikumaran reads as follows: "2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to th....
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....erence by this Court inasmuch as both authorities have held that a complete plant in an unassembled form has not in fact been imported. Further, both authorities have relied upon statements made by none other than the Vice President of the Appellant who after retracting a statement made on 3.1.2002 has made a subsequent statement on 21.2.2002 admitting that the imported goods were only components and had not attained the essential characteristics of a plant. The subsequent statement has not been retracted. Further, Shri P.S. Banik an employee of Marshalls also made a statement that the plant in its entirety consisted of 11 containerised sections of which a few were indigenously produced by Marshalls. Shri Bhattacharjee also an employee of Marshalls added that what was manufactured indigenously was essential for the functioning of the plant. Further, Shri M.V.N. Rao, of the National Highways Authority of India stated that a complete plant had not been imported and that the components of such plant which were imported did not have the essential characteristics of a hot mix plant. 5. It is settled law that statements made to an Officer of Customs are admissible in evidence under Se....