TaxTMI 
TaxTMI 
2015 (9) TMI 1015
X X X X Extracts X X X X
X X X X Extracts X X X X
....ard Both sides. Ld. Advocate appearing on behalf of the appellants submitted that they are eligible for the exemption notification No.21/02-Cus. for import of said machines which are used in construction of national highway. He explained the Sl.No.230 of Notification covers goods falling under Chapter 84 or any other chapter and the machines are covered in Sl.No.18 of the list, and they complied with condition No.40 of the said notification. 3.1 He drew our attention to para-5 of the order-in-original where the adjudicating authority clearly came to the conclusion that importer is a sub-contractor of STPL (Special Purpose Vehicle-SPV) /Concessionaire and hence eligible for duty exemption. At para-9 of OIO also the adjudicating authority clearly held that appellants can be treated as a contractor appointed by a special purpose vehicle/concessionaire. Contrary to the above findings, at para-11 he has held that appellant cannot be treated as contractor or sub-contractor. 3.2 He invited our attention to relevant copies of concession agreement appended to the appeal paper book. The first agreement is dt.27.3.2001 viz. Concession Agreement entered into between N....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bsp; 3.5 He further submitted that on identical import pertaining to another importer viz. M/s. Punj Lloyd Ltd., New Delhi during the same period the exemption benefit under Sl.No.230 of notification was denied vide OIO dt.16.7.2002. On appeal, Commissioner (Appeals) had allowed the benefit of Exemption Notification No.21/2002 and set aside the adjudication order. Revenue preferred an appeal against the said order and this Tribunal Bench dismissed the Revenue's appeal as reported in 2009 (247) ELT 776 (Tri.-Chennai). He submits that both are identical imports and covered under the NHAI authority for execution of project of widening of National Highway and therefore pleaded that they are eligible for the exemption benefit. 4. On the other hand, Ld. A.R for Revenue reiterates the findings of adjudication order. She submits that adjudicating authority has rightly denied the benefit of exemption as Sl. No.(iii) of Condition No.40 of the notification has not been fulfilled. She further submits that condition (iii) stipulates a person who has been named, as a sub-contractor in the contract referred to in (ii) of the notification for construction of roads. The notification also stip....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the OIO is reproduced below :- "3. The letter No.15021/2001/Tech/GM(E)/90 dated 18.2.2002, issued by NHAI stated that the importer M/s.Bumi Hiway (India) Pvt. Ltd. are required to import necessary machineries and construction equipment for execution of the contract for Tada-Nellore-BOT PROJECT. Currently, they intend to import an Asphalt Mixing plant model Speco TSAP-1550FFW including accessories for the above work. Accordingly, they are recommending to exempt customs duty in respect of the same as per notification No.16/2000 dated 1.3.2000. In view of the above, the party submitted that their claim for duty exemption be considered. 3.1 From the Bill of Entry No.12732 dated 12.7.2002 filed by the importer and the exemption letter No.15021/2001/Tech/GM(E)/90 dated 18.2.2002, supporting their claim for exemption produced by the importer it appears that, (i) M/s. Speco Limited, Seoul, Korea have sold one unit of Speco Asphalt mixing Plant (model No.TSAP-1550FFW of 124 tons per hour capacity to BHL vide invoice No.01-A-6029 dt.21.2.2002 for USD 281,031.75 CIF. (ii) The goods under import are one unit of Speco Asphalt mixing Plant with capacity upto 124 TPH. (iii) Based on a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was entered between NHAI and the Employer (SPV) and the Employer shall be deemed to the Concessionaire under the Concession Agreement. Therefore, by virtue of this clause the STPL is the Concessionaire. 7. In this regard, we find that NHAI in their letter dt.18.2.2002 has clearly brought out various clauses of the agreement and the MOA signed between Govt of India and Govt of Malaysia and also setting up of SPV and recommended for exemption of duty for import of "Asphalt Mixing Plant Model Speco TSAP-1550FFW" imported by the appellant for executing the project under the Notfn 21/02. At para-4 of the above letter, it is clearly stated that pursuant to the Assignment Agreement, M/s.Swarna Tollway Pvt. Ltd. has awarded the contract to appellant for roadwork. From the above, it is established that STPL (SPV) has awarded the contract to the appellant and it cannot be said that appellant is a sub-contractor of a contractor. 8. Revenue relied on Supreme Courts decision in the case of Gammon India Ltd. Vs CC Mumbai (supra). The above case relates to exemption notification No.17/2001-Cus. relating to a person who has been awarded for contract by NHAI. The contract has been awarded b....