TaxTMI 
TaxTMI 
2002 (8) TMI 179
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.... Board. 2. They imported, somewhere in May, 1999 a gas turbine and generator in semi-knocked condition in 128 packages cleared the same on a Bill of Entry No. 109/20-5-99, under Chapter Heading 9801 of Customs Tariff for Project Importer. Out of the 128 packages, certain equipments due to its dimensions, had to be carried by sea to Machilipatnam. They were loaded on a barge, which set out on coastal voyage on 1-6-99. Due to rough weather on 2-6-99, the barge capsized and overturned, resulting into total loss of the so imported gas turbine and generator loaded thereon. Replacements for the same were ordered and once again cleared under PIR. 3. For the goods lost/destroyed at sea on 2-6-99, a show cause notice dated. 23-4-2001, was issu....
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....ption of Tariff Heading 98.01. It was also submitted that Regulation 7 provides for finalization of contracts within 3 months from the date of clearance for home consumption of the last consignment of goods. The said Regulation did not lay down the requirement of installation or commissioning of the machinery imported under PIR. Reference was also made to the genesis of Project Import assessments in erstwhile Tariff Heading 84.66. It was submitted that the condition precedent for assessment under PIR is the registration of contract with the Customs authorities. On the basis of the above grounds, it was submitted that there was no justification for demanding the differential duty on the gas turbine and generator lost at sea, on the ground th....
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.... to be imported. This is not possible and cannot be done. The assessment here to be finalised only after the last consignment has arrived and Regulation 7 of the PIR has been complied. The Commissioner has passed the impugned order on 31-12-2001, even before the receipt of installation Certification from the Deputy Commissioner of Customs, Kakinada for the goods contained in 128 Kgs which were imported along with the gas turbine and generator. He has concluded 'considerable negligence' on the part of the appellants to take precautions for safe passage of goods by sea to Machilipatnam to deny the benefit of assessment under the project imports. (b) The ld. Advocate for the appellants had relied upon the decision of....
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....1 of the Customs Tariff to the earlier imports. The goods have not been found in this case to have been diverted for any other use. We therefore cannot persuade ourselves to approve the Revenue's contention that the subject goods, which cannot be installed, as they are lost due to reasons beyond the control of the appellants and/or thus not used in the power project, should be charged to duty at the rate applicable for normal imports of such items under the Customs Tariff. When we find that the collective wisdom of Commissioners Conference is to permit the destruction or re-export of such goods imported under PIR, which cannot be used for the Project. The ld. DR took us through the decision of Jacsons Thevara [1992 (61) E.L.T. 343 (S.C.)] t....
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.... various other submissions as regards the assessment not being provisional and the same cannot be re-opened as once classification under 9801 has been approved, and goods cleared under PIR. In view of Jacsons Thevara's case, Supreme Court (supra), we do not find any reason that there could be an embargo to recover the differential duty on goods cleared at concessional rate for projects under PIR. However, this decision when read harmoniously with the Commissioner's Conference conclusions would indicate, when goods are not used elsewhere in India or are destroyed, in such conditions, there is no additional liability for differential duty. Liability would arise, only in cases of PIR clearances being used for purposes other than the Projects R....