TaxTMI 
TaxTMI 
2019 (5) TMI 271
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....ility to the exemption with reference to the documents that, though required, were not submitted. As both these aspects have been covered in the impugned order, we take up the merit of the appeal in its entirety though Learned Authorised Representative did contend that the appeal before the first appellate authority was limited to the assessment in the bill of entry which, owing to lack of both documentation and claim for exemption, could not venture upon the eligibility. 2. Considering the backdrop of the dispute, it may be necessary to peruse the exemption notification that was denied. The goods, at sl. no. 230 of the said exemption notification, among those enumerated in list 18 and to be deployed for construction of roads are entitled to exemption from the basic, and additional, duties of customs subject to compliance with condition no. 40 in the said notification. As the coverage in the said list is not in dispute and it is eligibility that is in question, the appurtenant condition that '40. 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 ....
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....thereby, beyond the ken of the assessing officer who denied the benefit of the exemption. It was also pointed out that the first appellate authority appeared to place more reliance upon the specifics of the notification to hold that the want of name of importer, as sub-contractor, in the contract entered into by the awardee of the contract and the enumerated agency are fatal to the claim than on ascertainment of facts. 4. It is the contention of Learned Counsel that, the terms of the 'request for inclusion' in the bidding process requiring the awardee-consortium, comprising the appellant and M/s Punj Lloyd Ltd to float, for the purposes of the agreement, such a one, a 'special purpose vehicle' was formed in the name and style of GMR Hyderabad Vijayawada Expressways Pvt Ltd. According to him, it was the narrow interpretation of the expression 'concessionaire' in the agreement and the reasoning that the appellant could, at best, be a subcontractor if incorporated within the agreement and, thereby, not qualified for the exemption that was cited for denial. Learned Counsel further submits that the various decisions of the Tribunal which are relied upon by Learned Authorised Represen....
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....0 in order no. A/86750-86753/2018 dated 8th June 2018, had also denied the exemption for failing to fulfil the condition. 6. The issue for determination is very plainly the eligibility of a consortium partner to be entitled to the benefit of the said notification for import of goods required for construction of roads without payment of duty. The notification itself specifies that deployment for construction of roads for five years is a mandatory qualification of eligible importer at the threshold as well as for continual exemption. The Tribunal, in Gammon India Ltd v. Commissioner of Customs (Import), Mumbai [2019-TIOL-762-CESTAT-MUM], has segregated the dichotomous condition - one at the threshold for eligibility to import without payment of duty by the entities listed therein and the other for continuing eligibility based on specified deployment for a specified time - before holding that both are mutually exclusive. In that order, all the decisions, now referred, were perused and found to have arrived at the respective conclusions on the conformity with, or the breach of, one or the other of the two mutually exclusive conditions but never for both. The applicability of those d....
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.... to the start of implementation of the Project. The MOU was in the context of NHAI inviting Qualification and Financial Proposal from entities interested in "Design, Construction, finance, operation and maintenance of km 0.00 km to km 32.27 of Gorakhpur Bypass on NH-28 in the State of Uttar Pradesh on Annuity Basis". The MOU was reached with respect to member's (of the consortium) rights and obligations towards each other and their working relationship. As per clause 8 of the said MOU, - "8. That the roles and responsibilities of each Party at each stage of the Bidding shall be as follows :- a. Construction Works: GIL shall be responsible for the execution of construction works to the Project. b. Operations & Maintenance Works : GIL and/or GIPL shall be responsible for the operations and maintenance works for the Project." As per clause 10 of the said MOU - "That the Parties shall be jointly and severally liable for execution of the Project in accordance with the terms of the Concession Agreement".' 6.2 The argument of the appellant is that this MOU which is part of RFP should be considered as a sub-contract and the appellant, M/s. GIL s....
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....ractor is an entity that signs a contract to perform part or all of the obligations of another's contract. A subcontractor is hired by a general contractor (or prime contractor, or main contractor) to perform a specific task as part of the overall project and is normally paid for services provided to the project by the originating general contractor. If that be so, there is no logic and reason for deeming the appellant as a sub-contractor of M/s. GICL at all. 6.4 It has also been argued that the appellant entered into an EPC contract with M/s. GICL on 14-4-2007. No copy of the said contract has been produced before us nor is it part of the records. Assuming the contention to be true, the concession agreement between GICL and NHAI was entered into on 6th October, 2006. The so called sub-contract between the appellant and M/s. GICL was entered into on 14-4-2007. If that is so, how can the appellant be named as a sub-contractor in the agreement dated 6-10-2006 when no sub-contract was in existence? Thus from whichever way one looks at it, the appellant does not satisfy condition No. 40(a)(iii) so as to be eligible for the benefit of duty exemption. The first order of the T....