TaxTMI 
TaxTMI 
2023 (2) TMI 1451
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....Redemption Fine of Rs. 20,00,000/- (Rs. Twenty Lacs Only). I order to confirm and demand that the amount of duty Rs. 80,20,467/- (Rs. Eighty lakhs twenty thousand four hundred sixty seven only) should be recovered under section 125(2) of the Customs Act, 1962 read with the condition no: 40 of the notification 21/2002 dt 1-3-2002. The Bank Guarantee of Rs. 80,00,000/- executed by ATLANTA LTD. for provisional release of the seized HOPR be enforced towards duty liable. I impose penalty of Rs. 5,00,000/- (Rs. Five Lacs only) on ATLANTA LTD. (a) under the section 112 of the Customs Act 1962. I impose personal penalty of Rs. 5,00,000/- (Rs. 5 Lacs) on Shri Rajhoo Bbrot, Managing Director, ATLANTA LTD. under section 112(b) of the Customs Act, 1962.' 1.2 DRI on receipt of intelligence that appellant had imported and cleared Hydraulically Operated Piling Rig Machine HR-130 of MAIT make 'bearing Sl. No. 1302050923 (hereinafter referred to as HOPR) vide bill of entry No.767489 dated 08.08.2002, through Nava Sheva Port by claiming and availing the benefit of conditional exemption from customs duty under SI.No.230 of the Table annexed to Notification No. 21/200....
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.... Sub clause (b) of condition No.40 of Notification No.21/2002-Cus, Serial no.230, reads as under- "(b) the importer, at the time of importation, furnishes an undertaking to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, to the effect that he shall use the imported goods exclusively for the construction of roads and that he shall not sell or otherwise dispose of the said goods, in any manner, for a period of five years from the date of their importation." * All the words i.e. 'Shall use'; 'exclusively' and 'shall not sell or otherwise dispose' used in the above mentioned condition only implied that it is a mandatory clause and compliance of the same is required by the person who took the benefit of the Notification. * Further, the words 'shall not sell or otherwise dispose clearly means that 'sell' and 'otherwise dispose' are two separate words and cannot be considered synonyms of one another. It appears that the 'otherwise dispose' is mutually exclusive to sell and so it covers all other type of disposal of goods other than selling. In view of above, rent....
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...., MD of the importer appellant decided the to take claim of the said notification on the impugned goods. It is his confessed position vide statement dated 23.05 2007 and said statement was never retracted (Page 148). Further, he was responsible for allowing it to be used on rent. (Findings of OA at Page 235). * On the issue of interpretation of Notification reliance is placed on decision in case of Dilip Kumar & Company reported in 2018(361) ELT 577 (SC). * Tribunal decisions in the case of Ircon International 2019(366) ELT 1034(Tri. Mumbai) and Gammon India 2019(369) ELT 918(Tr. Mumbai), are distinguishable as in those cases, the goods were only used in Road Constructions, not elsewhere. Moreover, the Revenue has challenged those decisions before the Hon'ble Apex Court and in both the cases it is ordered to "Issue Notice- 2020(372) ELT A 103(S.C) in the case of Gammon India and 2019(368) ELT A 231(SC) in the case of Ircon International Ltd. * Both the appellants are habitual duty evaders/offenders. In their another identical case 2017 (348) ELT 562(Tri Mumbai), the appeals were dismissed.' 4.1 We have considered the impugned order along submission....
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....plain the scope of the word "disposal" is not squarely applicable to the present context. Also is any legal provision 'exclusive' claim will be limited to only those that are specifically mentioned therein. Thus, the interpretation of the notification is that the imported goods should exclusively be used for Road construction and not for building or other constructions, for a period of five years and 2. that the importer shall not sell or otherwise dispose of the goods in any manner which include lease, renting etc for a period of five years. The submission of the importer that the said assessment by the proper officer of Customs has attained finality. Here it should be remembered that the assessment was conditional aid the importer, at the time of importation, furnished an undertaking to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, to the effect that he shall use the imported goods exclusively for the construction of roads. Importers further submission that it is not the case in the notice that the HOPR was never or not used in the said project. Again the correct interpretation is that the imported goods should b....
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....ne as the said office thinks fit; (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1). the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods. 15. From the above, it appears that: a. ATLANTA LTD. imported one HOPR vide bill of entry No. 747689 dated 08.08.2002 by claiming and availing the exemption in terms of Notification No. 21/2002- cus. dated 01.03.2002, under a condition that the HOPR will exclusively be used for construction of roads and not dispose in any manner for a period of five years from the date of importation. b. ATLANTA LTD. executed a bond for Rs. 80,20,467 (Rupees eight lakhs twenty thousand four hundred and sixty-seven only), at the time of clearance stating that they would use the imported HOPR exclusively for the construction of roads for the period of five years from the date of importation. c. ATLANTA LTD. violated the condition prescribed under the notification by renting out the machine to VEL who in turn used the HOPR for construction of commercial building projects. d. ....
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....ts are bound to give effect to the said meaning irrespective of consequences. If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. In Kanal Lal Surv. Paramnidhi Sadhukhan, AIR 1957 SC 907, it was held that if the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. 52. To sum up, we answer the reference holding as under- (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) The ratio in Sun Export case (supra) is not correct and all the decisio....
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.... a period of five years for the construction of roads by himself. Thus, there is a clear violation of the post- Importation condition. 6.3 it is a settled position in law that an exemption notification has to be construed strictly, the same being in the nature of an exception. Inasmuch as the conditions of the exemption notification has been violated, the appellant is obviously not eligible for the benefit of exemption and consequently the appellant becomes liable to pay the differential duty at the rate prevailing at the time of importation of the goods. 6.4 There is no dispute in the present case, about the quantum of duty computed. Therefore, we hold that the appellant is liable to pay the differential duty of 144.11.453) in respect of stone crushing plant imported vide Bill of Entry No. 512687, dated 10-11-2004 and differential duty of 88.63,329 in respect of hot mix plant imported vice Bil of Entry No. 528443, dated 3-1-2005 under the proviso to Section 28(1) of the Customs Act, 1982 and also in terms of the bond/undertaking executed by the appellant at the time of importation, Inasmuch as the appellant had suppressed the fact of diversion, extended period of....
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....n of roads in India by or on behalf of the Ministry of Surface Transport, by the National Highway Authority of India, by the Public Works Department of a State Govt or by a road construction corporation under the control of the Govt of a State or Union Territory. (b) the importer, at the time of importation furnishes an undertaking to the Deputy Commissioner of Customs or the Asst. Commissioner of Customs as the case may be, to the effect that he shall use the imported goods exclusively for the construction of roads and that he shall not sell or otherwise dispose of the said goods, in any manner, for the period of five years from the date of the importation; and (c) in case of goods at Sr. No. 12 & 13 of the list 18, the importer, at the time of importation of such goods, above produces to the Dy. Commissioner of Customs or Asst. Commissioner of Customs, as the case may be, a certificate from an officer not below the rank of a Dy, Secretary to the Govt of India in the Ministry of Surface Transport (Roads wing, or as officer not below the rank of Chief engineer of the National Highways Authority of India to the effect that the imported goods are required for constr....
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....ment of Shri Rajiv Nath, Sr. Manager Project Division was recorded and in his statement has submitted that M/s. Nicco Corporation Ltd. undertook engineering project or erection and commissioning of plant like gas plant, oil plant etc. M/s. ONGC has given a contract to M/s. Nicco Corporation Ltd. for construction of Pipe storage system with gantry crane and pipe stretching system including road culverts, site levelling works for model like Ligiri, Pukhari site, Assam. The aforesaid contract was for the period 27-3-2007 to 26-1-2008 and the contract work involves concretisation of the ground area of the entire depot and also erection of gantry crane bundle, electric panel and compressor in the said depot. He further stated that the depot which is of the size of 340 Mtr X 140 Mtr 1.6. 40,600 sq.mtr and this depot is for purpose of storage of drilling pipe by ONGC. The above mentioned total work in the contract, the later part i.e. engineering erection of rail, gantry crane bundle strip system, electric panel and compressor is being carried out by project division. The paver finisher was used for dry lean concrete for an area of 1200 sq.mtr. initially and thereafter another area of 800....