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2022 (12) TMI 484
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....r import of capital goods. Since these capital goods were required for setting up the project were eligible for exemption from payment of custom duty, if the contracts/purchase orders for importing the same were registered under the Project Import Regulation, 1986,(PIR,1986- for short). The appellant had accordingly applied to the sponsoring ministry for necessary approval and based there on also applied to the customs for registering of contracts entered with the aforesaid 4 vendors under the PIR , 1986. In case of 61 bills of entry covered by Order-In-Original dated 29.04.2015 is concerned, the contracts were registered under PIR, 1986 prior to filing of bill of entry for home consumption, while in respect of 2 bills of entry dated 22.06.2010 and 22.12.2009 covered by Order-In-Appeal dated 19.11.2014 the contracts were registered prior to the assessment of bills of entry and orders for clearance for home consumption having been passed. The limited issue in dispute in the present appeals are as under :- (i) Whether benefit of project import is available when contract is registered with the customs authorities after filing an into bond Bill of Entry but before filing of an....
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....um Company vs. CC reported in 2019 (366) ELT 354 (Tri. Kol.).He also relied upon the following Judgments:- • Bharat Earth Mover Limited vs.CC- 2006 (201) ELT 60 • Eveready Industries India Ltd Vs. CC - 2019 (369) ELT 730 2.1 He submits that as regard the reliance placed by the impugned order on the judgment of Apex court in the case of M/s Dunlop India Ltd vs. CC reported at 1997 (95) ELT 162 (SC), the respondent failed to appreciate that the said judgment was rendered in the context of PIR, 1965 , the provision of which are not pari- materia with those of PIR, 1986. He further submits that the judgments of M/s Dunlop India Ltd vs. CC (Supra ) follows the ratio of the Hon'ble Apex Court in Mihir Textiles relied upon by the respondents were considered in the case of Essar Projects India Ltd vs. Commissioner of Customs Port, Kolkata (Supra) wherein a distinction was drawn between the provision PIR,1965 and PIR, 1986 while holding in the favour of assessee. 2.2 He further submits that the respondent have also relied upon the decision of the Hon'ble Apex Court in the case of Sneh Enterprise Vs. CC reported in 2006(202) ELT 7(SC). The facts of that case i....
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....lant is not disputing the nature and characteristics of the goods and the classification was determined in into bond bills of entry . He submits that in the present case while the appellant does not dispute that at the time of clearance for home consumption the goods sought to be imported by it were individually liable to be classified under the same heading as determined at the time of warehousing. By virtue of the fact that the same were sought to be imported under the PIR as a whole Chapter heading 9801 would apply to all such goods as evident from the mere perusal of Chapter note 2 of Chapter 98 therefore, the aforesaid cases relied upon by the respondent are not applicable to the facts and circumstances of the present case. 2.6 He submits that the aforesaid decisions relied upon by the respondent do not laid down the binding precedent and are in fact contrary to the judgment of Hon'ble Madras High Court in the case of Commissioner of Customs vs. Tungabhadra Fibres Limited reported at 1994 (71) ELT 655 (Mad.). He also placed reliance on the decision of:- • Dinesh Mills Vs. CC 2007 (220) ELT 246 Tri. Ahmd) • Ferro Alloys Corporation Ltd Vs. Collector....
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....ed Special Counsel appearing on behalf of the Respondent reiterates the finding of the impugned order. As regard the Revenue's appeal he reiterates the grounds of the appeal. He also placed reliance on the following judgments: • Dunlop India Ltd - 1997 (95) ELT 162 (SC) • Mihir Textiles Ltd - 1997 (92) ELT 9 (SC) • Pratibha Industries Ltd - 2005 (188) ELT 433 (Tri.-Mum) • Industries Ltd - 2015 (320) ELT A273 (SC) • Ajanta Offset & Packaging Ltd - 1997 (94) ELT 443 (SC) • Radhe Exim Pvt Ltd - 202 (372) ELT 600 (Tri.- Ahmd) • Prabhat Cotton and Silk Mills Ltd - 1982 (10) ELT 203 (Guj.) 4. We have carefully considered the submission made by both sides and perused the records. As regard the assessee appeal the issue for our consideration in this case are as under:- (i) Whether benefit of project import is available when contract is registered with the customs authorities after filing an into bond Bill of Entry but before filing of an ex-bond bills of entry for home consumption. (ii) Whether change in classification is permissible at the time of ex-bonding from the warehouse f....
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.... (2) The importer shall apply , as soon as may be, after he has obtained the Import trade control licence wherever required for the import of articles covered by the contract and in case of imports covered by the Open General Licence or imports made by Central Government, any State Government, statutory corporation, public body or Government undertaking run as a joint stock company (hereinafter referred to as " Government Agency") as soon as clearance from the [concerned sponsoring authority], as the case may be, has been obtained (3) The application shall specify - (a)the location of the plant or project; (b) the description of the articles to be manufactured, produced, mined or explored; (c) the installed or designed capacity of the plant or project and in the case of substantial expansion of an existing plant or project the installed capacity and the proposed addition thereto; (d) such other particulars as may be considered necessary by the proper officer for purposes of assessment under the said heading. [(4) The application shall be accompanied by the original deed of contract together with a true copy thereof, the im....
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....me consumption without payment of duty subject to re-export in respect of fares, exhibitions, demonstrations, seminars, congresses and conferences, duly sponsored or approved by the Government of India or Trade fair Authority of India, as the case may be, before the date of payment of duty." From the plain reading of the above para of CBEC's Custom Manual of Instruction also makes it very clear that the contract should be registered before any order is made by proper officer of customs permitting goods for clearance for home consumption. Therefore, in the present case since all the project and purchase orders were registered before filing of ex-bond bills of entry i.e. before clearance of goods for home consumption the appellant have scrupulously complied with the provision of Project Import Regulation, 1986. This issue is no longer res-integra as this Tribunal dealing with the absolutely identical issue in the case of Essar Projects India Ltd vs. Commissioner of Customs port, Kolkata (Supra) held as under: "5.6 A plain reading of Regulation 4 and the instruction of CBEC mentioned above leaves no room for doubt that the timing stipulated for registration of the contract....
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.... "5. We find that the issue in this appeal is regarding demand of customs duty on the ground that the appellant had irregularly taken duty concession under Project Import Regulations, 1986 (PIR) inasmuch as they have not complied with sub-clause (i) of Regulation 5 of the PIR as the contracts have been registered by the proper officer at the port after importation of the goods and warehouse. 6. We also find that as per Rule 5(2) of the PIR, any importer desiring to claim the benefit of Project Imports, shall get a clearance from the Sponsoring Authority. In the present case the sponsoring authority i.e. the Ministry of Commerce and Industries, Department of Industrial Policy and Promotion (light engineering section), had cleared/approved the project imports of the appellant for import of capital goods for essential setting up of project at Uttaranchal in terms of Customs Notification No. 230/86-Cus., dated 3-4-1986. This has been addressed to the Assistant Commissioner of Customs, Customs House, Kolkata and is part of the appeal paper book of pages 41, 42, 43 and 44. 7. We further observe that the Regulation 5 is not a condition determining eligibility of the im....
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.... Regulation 4 & 5 of the present Regulations and in Chapter Heading 98.01. The Regulation 4 specifically omits a reference to the condition regarding registration being done before depositing in a warehouse and only states that it has to be done before clearance for home consumption. Therefore, both the authorities have not carefully gone through the provisions and had denied the benefit on incorrect reading of the provisions. The appellants had registered the contract before the clearance of the warehoused goods and hence they are eligible for the benefit of the Project Import in terms of the Tribunal ruling rendered in the case of McNally Bharat Engineering Company Limited vide final order No. 1607/05, dated 8-9-2005. The refund is not hit by provisions of unjust enrichment. The appellants succeed in this appeal and the same is allowed by consequential relief, if any." In the above judgments since consistent view was taken by the Tribunal, in our view the issue is no longer res-integra. Therefore, merely because the project was registered prior to clearance of goods for home consumption from warehouse there is no contravention on the part of the appellant and they are legally ....
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....ex-bond bill of entry the project import has been classified under CTH 9801 and benefit was allowed without raising any objection. We are of the view that at the time of clearance of the goods either from the port for home consumption or either from the warehouse under ex-bond bills of entry the correct custom tariff head has to be applied. For example, if by mistake wrong classification was made in the into bond bill of entry, the same cannot be allowed to be continued while filing the ex-bond bills of entry and in the ex-bond bills of entry the error has to be rectified and clearance shall be effected under the correct classification. Therefore, the revenue's contention that the appellant are not allowed to change the classification in the ex-bond bills of entry is absolutely incorrect an illegal. In this regard, we take support of the Judgment of Hon'ble Madras High Court in the case of Commissioner of Customs vs. Tungabhadra Fibres Limited (Supra) wherein the Hon'ble court has found as under:- "6. The main question that arises for consideration in Writ Appeal No. 1470 of 1991 is as regards the levy and collection of enhanced auxiliary duty, as there is no dispute regar....
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....the goods had been entered for warehousing, the proper provision applicable would only be Sec. 15(1)(b) of the Act read with S. 68 thereof and not Sec. 15(1)(a). The learned judge, while accepting that Bills of Entry for deposit in the bonded warehouse were filed on 15-6-1981, fell into an error in holding that the goods had been entered for home consumption on arrival by presenting the Bills of Entry and therefore, the duty as leviable on that date alone, was payable. When it is not disputed by the company that the Bills of Entry filed on 15-6-1981 was for deposit of the goods in the bonded warehouse and not for clearance for home consumption, it is difficult to bring the case under Sec. 15(1)(a) of the Act." It is settled law that in case of warehousing goods at the time of ex-bond clearance for home consumption, the goods have to be re-assessed under section 2(2) of Customs Act, 1962. This issue has been considered by this Tribunal In the case of Dinesh Mills Vs. CC (Supra) wherein the following observation has been made:- "5. In respect of the goods imported and warehoused, it is to be noted that the goods are assessed and admitted to warehouse after taking necessar....