TaxTMI 
TaxTMI 
2022 (12) TMI 484
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....pital 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 ex-bond bills of entry for home consumption. ....
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....l.).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 is not identical to the facts of the present case. He submits that the expression on....
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....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 of Customs - 1995 (77) ELT 310 (Tri.-LB) ....
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....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 for the home consumption (only in respect of appeal No. C/11282/2015) 4.1 As regard the first issue we find that the Adjudicating Authority/Commissioner (Appeals) denied the exemption available for the project import applying t....
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....ernment, 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 import trade control licence, wherever required, and an approved list of items from the [ concerned sponsoring authority] (5) The importer shall also furnish such other documents or other particulars as may be required by the proper officer in connection with the registration of contract. (6) The proper offic....
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....ual 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 is on or before clearance of the goods for home consumption i.e. when it leaves the customs barrier. Needless to mention, clearance of goods for home consumption as mentioned in Regulation 4 of PIR, 1986 cannot be construed as crossing of the Indian territorial waters and depositing it in the warehouse. Unhesitatingly, it could be said that the clearance of the....
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....se. 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 imported goods for the benefit of concessional rate of assessment under Project Import Regulation. It is only a procedural requirement. The importer shall apply as soon as he has obtained the clearance from the sponsoring authority under Regulation 5(2) of the PIR. 8. We also observe that there is no prescribed time limit for obtaining clearance from the sponsoring authority. This aspect has further been....
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....he 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 entitled for the exemption available to the project import. As regard the judgment relied upon by the lower authorities, all those judgments being on the different facts, the ratio of same will not be applicable in the present case. On the contrary all the above judgments which are in the favour of the appellant are directly on the issue in hand. For this reason also the judgments relied upon by the lower authorities for confirmat....
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.... 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 regarding the basic duty. Even in paragraph 3 of the affidavit filed in support of the writ petition, the company had accepted that on 15-6-1981, its clearing agents filed two Bills of Entry for warehousing and for deposit in the bonded warehouse and that the goods were entered for warehousing for, the period upto 13-9-1992. Again, in paragraph 12, the company had accepted that the endorsement in the original had accepted that the endorsement in the origi....
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....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 necessary bond. Section 15 of the Customs Act prescribing the date for determination of rate of duty in the case of goods cleared from a warehouse under Section 68 to be the date on which a bill of entry for home consumption in respect of such goods was presented. At the time of clearance from the warehouse, reassessment is therefore a must. It may so happen that the rate of duty at the time of into-bill of entry and the rate of duty at the time of ex-bond bill of en....