2019 (3) TMI 621

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....port of 'rotary piling rig R-625 serial no. 2553 and its accessories' against bill of entry no. 714621/11.10.2006 and no. 717856/26.10.2006. In the impugned order-in-original no. 55/2010/CAC/CC(I)/SHH dated 6th July 2010 of Commissioner of Customs (Imports), Mumbai, the goods, valued at Rs. 2,87,33,620/- and `75,78,038/- respectively in the two bills of entry, were confiscated under section 111(o) of Customs Act, 1962 but permitted to be redeemed on payment of fine of Rs. 90,00,000/- while ordering recovery of Rs. 1,35,08,850/- that was foregone at the time of import under section 28(1) of Customs Act, 1962, read with section 125(2) of Customs Act, 1962, and imposing penalty of like amount under section 112 of Customs Act, 1962 on the impor....

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....mitted that the transfer to the site of the Patna project was pre-meditated and in breach of their undertaking to utilize the equipment at Panipat. Another contention made on behalf of Revenue is that the project for construction of 'rail over bridge' is not one of those awarded by Ministry of Surface Transport, National High Authority of India, Public Works Department or Road Construction Corporation in the State of Bihar which alone would entitle the importer for the benefit of the exemption. Reliance is placed on the decision of the Tribunal in Patel Engineering Ltd v. Commissioner of Customs (Import), Mumbai [2013 9295) ELT 243 (Tri.Mumbai)], which was upheld by the Hon'ble Supreme Court by dismissing the appeal of M/s Patel Engineering....

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.... through exemption from duties of customs on import of equipment that is intended to be deployed. 5. The eligible goods are specifically enumerated and it is not in dispute that the impugned goods are not ineligible. With that objective, it is enshrined therein as assurance that the privilege of exemption is subject to utilization in road development project undertaken by the State or specified instrument of the State and retention with the importer for five years. Such projects are awarded in portion to contractors and it is not anybody's case that the equipment will find full employment during the execution of the project in entirety. The idling of such resources is as much of a waste as a national loss. It is in acknowledgement of that ....

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....site being made available to them. In these circumstances, the pre-importation condition, which is neither included in the undertaking for continuing obligation under the notification nor mandated to be so in the notification, cannot be held to have been deniable after the eligibility was determined at the threshold. Consequently, there is no breach leading to invokability of section 28 of the Customs Act, 1962 and/or section 111 of the Customs Act, 1962. 7. As far as the utilization of the imported equipment is concerned, it is not in dispute that the equipment was deployed on contracts for construction of rail over bridges. The post-importation deployment does not necessarily have to relate to contracts that confer eligibility at the thr....