2023 (5) TMI 146

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....just for the sake of exemption. Whereas there were already underlying but unexecuted agreements entered into between M/s. Photon Energy Systems Ltd. (Hyd.), (hereinafter referred as "M/s. PESL") and with M/s. Megha Engineering and Infrastructures Limited, Hyderabad (hereinafter referred to as "M/s. MEIL"). Department, therefore, was of the view that High Sea Sale Agreement were not genuine and it under took investigation by recording various statements to show that the exemption has been wrongfully claimed, whereas the underlying EPC contract provided that it was duty of M/s PESL to procure all the equipment and to pay customs duty. In the impugned order the Ld. Commissioner holding that the term 'importer' under Section 2(26) in relation to any goods at any time between their importation and their clearance from home consumption, includes any owner or any person holding himself to be importer found that M/s. APCA is not but M/s. MEIL, being owner of the goods, the real importer. The learned Adjudicating Authority also held that High Sea Agreement of were not genuine agreements and therefore APCA was not the owner and also not the importer and therefore wrongly claimed an exemp....

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....ds. We find that, in the course of the findings of the Commissioner there has been no discussion as to whether the person who holds himself as importer and whom the Ministry Of Renewable Energy also accepted as an importer can at the time of import, be prevented from availing benefit of Exemption Notification No. 01/2011-Cus., dated 06.01.2011 which is reproduced below:- Solar power generation projects-Exemption to all instruments etc. for setting up "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), and in supersession of the notification of the government of India in the Ministry of Finance (Department of Revenue ) No. 30/2010-Customs, dated 27th Feb. 2010, the Central Government on being satisfied that it is necessary in the public interest so to do, hereby exempts all items of machinery, including prime movers, instruments, apparatus and appliances, control gear and transmission equipment and auxiliary equipment (including those required for testing and quality control) and components, required for the initial setting up of a solar power generation project or facility, when imported into India, from so ....

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....nd not the person holding itself as an importer. Once this notion is discarded and person holding itself as an importer taken as included in purview of Section 2(26), all high sea sales agreement or their authenticity is relegated to irrelevance. Further, there being no dispute to the title of the goods or claim to the contrary, rather shows that there was consensus or not disagreement between the parties, which clearly points out that everything actually happened with some understanding or agreement, oral or otherwise. Despite this, department has still decided to investigate ownership. Regarding the case law relied upon by the learned AR, we find that the matter reported in 2009 (235) ELT 587 (S.C) i.e. Commissioner of Customs (Prev) Vs. Aafloat Textiles (I) P. Ltd was considering the forged Sale licence from market against consideration which, sale licence was found to be fake. The Hon'ble Supreme Court then held that even if such licence if purchased for consideration by any buyer, will vest in the buyer unless he is shown to have done due diligence. Same we find cannot be applied to the facts of this matter, where even the certificate issued by the M/s Renewable Energy Pvt. Lt....

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....rs that insofar as courier imports are concerned it is the courier which held itself out to be the importer and filed a bill of entry seeking clearance of the goods. If there was any misdeclaration of value, the only course of option available to the Revenue was to raise a demand, if any, against the courier. Even under the Courier Import (Clearance) Regulations, 1995, which have been relied upon by Member (Technical) it is the authorised courier who is required to file a bill of entry seeking clearance of the goods imported by it. The consignee or the CHA on its behalf can only with the concurrence of the courier file a bill of entry in the prescribed form seeking clearance of the goods. There is absolutely no evidence which would even suggest let later alone establish that either the appellant or the CHA on its behalf, had with the concurrence of the courier, filed a bill of entry seeking clearance of the goods imported through courier". (emphasis supplied) The views expressed assume importance as they from part of the majority view. It is clear from the observation that between the person causing the import or the owner, the choice of filing Bill of Entry has to be exercised ....