AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2008 (8) TMI 328
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....ated 2nd August, 1976 was issued by the Government notifying the project as one under sub-item 6 of clause (d) of heading 84.66(i) of the First Schedule to the Customs Tariff whereby a flat rate of 40% customs duty was charged on all items relating to the project. Heading 84.66, inter alia, states that the machinery imported should be required "for the initial setting up of a unit, or the substantial expansion of an existing unit". This heading specifically mentions and includes (i) all items of; (a) machinery including prime movers (b) instruments, apparatus and appliances (c) control gear and transmission equipments, (d) auxiliary equipments, as well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components, required for the initial setting up of a unit, or the substantial expansion of an existing unit, of a specified (1) industrial plant (2) irrigation project (3) power project (4) mining project (5) project for the exploration for oil or other minerals, and (6) such other projects as the Central Government may, having regard to the economic development of the country, notify in the Official Gazette in this behal....
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....the Petitioner did not form a part of the project and thus were ineligible for the discounted customs duty rate under Notification 2nd August, 1976 or under Heading 84.66. 7. It is also submitted that though the CBEC forwarded to the 2nd Respondent its aforesaid order dated 18th October, 1984, by its letter dated 5th October, 1987, the 2nd Respondent had issued a second Show Cause Notice dated 28th October, 1987 and had showed that he had pre-decided the issue against the Petitioner and therefore aggrieved thereby, the Petitioner approaches this Court by way of the present Writ Petition. 8. Mr. Bharucha, the learned Senior Counsel for the Petitioner submitted that the Petitioner had imported several equipments for the construction of the project like bull dozers, hydraupull hydraulic pumps, hydraulic jacks, etc. These equipments were essential for the construction of the project and the same would be re-exported after the completion of the project. These equipments were ex facie covered by the 84.66 read with the Notification dated 2nd August, 1976 and the order dated 18th October, 1984 of the CBEC. 9. In reply to the submissions made by the learned Senior Counsel for the Petiti....
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....it is designed to be employed directly in the performance of processes necessary for manufacture of fertilizer. Since the fertilizer plant is covered by the industrial plant specified in Heading 98.01 of the Tariff Act all the "auxiliary equipments" which are required for the initial setting up of the unit could be imported under the project import scheme. 12. It is not disputed that construction equipments imported by the Respondent were used in the initial setting up of the plant. The Assistant Collector and the Appellate Authority denied the facility of the project import as the ownership of the imported goods would not pass to the project authority and that the machinery imported could be utilized elsewhere in the setting up of any other plant. What is required under Heading 98.01, Tariff Act is that the machinery imported should be required "for the initial setting up of a unit, or the substantial expansion of an existing unit". This heading specifically mentions and includes "auxiliary equipment". The "auxiliary equipment" has not been defined under the Tariff Act. As per dictionary meaning, extracted above, it is an equipment which aids or helps. Any equipment which aids or....
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....etting up of the industrial plant. The facility of the project import was denied to the Respondent because the ownership of the imported goods did not pass to the project authority. Since it is not disputed that the construction equipments imported by the Respondent were used in the initial setting up of the plant, then, as per the provisions of Heading 98.01 of the Tariff Act the Respondent could not be denied the benefit of the project import. 11. It is also pertinent to note that the CBEC had passed an order dated 18th October, 1984, Exhibit-"C" to the Petition and had confirmed that the goods which were being imported into the country on re-export basis were entitled to the benefit of concessional rate of duty under the Notification No. 269/76. The CBEC had also stated that the Petitioner could avail the benefit of duty drawback under Section 74 of Customs Act, 1962 in respect of the duty which they would have to pay on a concessional basis. 12. The learned Senior Counsel Mr. Bharucha for the Petitioner pointed out that the order dated 18th October, 1984 passed by the CBEC was binding on the Respondents and the impugned show cause notices are wholly without jurisdiction. In s....
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.... to raise plea of non-maintainability of the Petitions on account of any such alternative remedy being available to the Petitioners, the Respondents cannot be allowed to non-suit the Petitioners, at the final stage, merely on such a technical plea and more particularly when the Petitioners have a good case on merits. Applying the same rule t the case in hand, the objection relating to the availability of alternative remedy is rejected." (c) In a Division Bench Judgment of this Court in the case of Century Spinning & Manufacturing v. Union of India, 1993 (67) E.L.T. 224, it is observed that "at this stage of final hearing Shri R.V. Desai, the learned Counsel for the Department urged that since there is an alternate statutory remedy available to the Petitioner of preferring an Appeal to the Tribunal, this Writ Petition should not be entertained by this Court under Article 226 of the Constitution of India. This submission is merely to be stated to be rejected for the simple reason that rule was issued after hearing both the parties in the year 1979 and ii is too late in the day at the stage of final hearing of the Petition in the year 1992 to take a preliminary objection for the exer....