TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 127
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..../2002-Cus dated 01.03.2002 as amended (Sr No 230, Item Sr No of List 18 & condition 40) 2.2 Assessing/ Adjudicating Authority denied the benefit of exemption claimed for the reason as follows: * Appellant name being the subcontractor, did not figure in the main contract between GHVPL and NHAI. * Goods imported by the appellant is Electronic Paver (with Sensor device) for laying bituminous pavement upto 9 mtr whereas the exemption was in respect of Electronic Paver Finisher (with sensor device) for laying Bituminous pavement 7 mtr size and above. 2.3 Aggrieved by the assessment order appellants filed the appeal before the Commissioner (Appeal). By the impugned order referred in para 1, supra Commissioner (Appeal) has dismissed the appeal. 2.4 Aggrieved by the impugned order appellant have preferred this appeal. 3.1 We have heard Shri Nand Kishore, Advocate for the Appellants and Shri Bhushan Kamble, Assistant Commissioner, Authorized Representative for the revenue. 3.1 Arguing for the Appellant learned Counsel, submitted that- * Joint Secretary (Tax Research Unit), has vide his D O F No 334/15/2014-TRU dated 10th July, 2014 clarified the issue in respect of admissibility ....
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.... "12. The short question for determination is whether import of the specified machine by Gammon can be considered to be an import "by a person who has been awarded a contract for construction of the roads in India", so as to fulfill Condition No. 38, laid down in Exemption Notification No. 17/2001-Cus., dated 1st March, 2001 ? 13. In order to appreciate the contentions advanced on behalf of the parties on the question in issue, it would be expedient and useful to once again notice the salient features of agreement dated 18th September, 2000 entered between Gammon and Atlanta. 14. Agreement dated 18th September, 2000 provided that : financial responsibilities of each of the parties to be shared equally in the form of guarantees, securities, etc. of the joint venture would be 50% of the project value; the Management of the joint venture would be subject to the overall control of the Management Board, consisting of a Chairman, to be nominated by Gammon, a Joint Chairman to be nominated by Atlanta and one Director each to be appointed by both of them; joint venture bank account would be operated under joint signatures of the authorized representatives of Gammon and Atlanta and nei....
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....the import of the machinery by Gammon is to be considered as having been done on behalf of the joint venture, the Tribunal has allowed revenue's appeal. 16. Since the stand of the appellant is that the issue arising in the present appeal stands concluded in their favour by the decision of this Court in New Horizons (supra) and a subsequent decision of this Court as also of the Tribunal, in which the said decision has been relied upon, it would be necessary to discern the ratio of the decision in New Horizons (supra). 17. In New Horizons (supra), a joint venture company, consisting of a few Indian companies (with 60% share capital) and a Singapore based company (with 40% share capital), had participated in tender proceedings floated by the Department of Telecommunications for printing and binding of telephone directories of Delhi and Bombay. The tender submitted by New Horizons Ltd.; (for short "NHL") was not accepted by the tender evaluation committee, apparently, on the basis of the fact that the successful party had more technical experience than any one of the constituent companies of NHL. Aggrieved by the said decision, NHL filed a writ petition in the Delhi High Court agai....
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....ons or companies may join together. A joint venture corporation has been defined as a corporation which has joined with other individuals or corporations within the corporate framework in some specific undertaking commonly found in oil, chemicals, electronic, atomic fields. (Black's Law Dictionary, 6th Edn., p. 342) ..................................." 18. In short. New Horizons (supra) recognises a joint venture to be a legal entity in the nature of a partnership of the constituent companies. Thus, the necessary corollary flowing from the decision in New Horizons (supra), wherein the partnership concept in relation to a joint venture has been accepted, would be that M/s. Gammon-Atlanta JV, the joint venture could be treated as a 'legal entity', with the character of a partnership in which Gammon was one of the constituents. In that view of the matter, the next question for consideration is whether being a legal entity i.e. a juridical person, the joint venture is also a "person" for the purpose of Condition No. 38 of the Exemption Notification, stipulating that the goods should be imported by "a person" who had been awarded a contract for construction of goods in India by NHAI? ....
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....s Court in Mangalore Chemicals - and in Union of India v. Wood Papers referred to therein - represents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee - assuming that the said principle is good and sound - does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room ....
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....takes the bid process to its logical conclusion by entering into an agreement with the awarding agency. Restricting the eligibility to the subsequently created artificial person, emerging from the contractual compulsion to fulfil a structuring requirement, would incapacitate the execution of the work and the original intent of the extent of the notification was thus amplified, and articulated, in the referred clarification. The adjudicating authority who authored impugned order did not have the benefit of this clarification. The earlier decisions were rendered in the absence of such declaration of intent and the intent, having been declared subsequently despite contrary judicial decision, would have to be acknowledged in the implementation; disregard of that intent, as declared, would be tantamount to foray into policy formulation." 4.5 We cannot agree with the submissions made. Hon'ble Supreme Court (five member bench) has clearly in the case of Ratan Wire & Melting, referred by the Authorized Representative clearly laid down the law in respect of applicability of circulars/ clarification as follows: "5. Learned counsel for the assessee on the other hand submitted that once the....