2013 (3) TMI 530 - AT - Customs

Mega Power Project - Exemption under Notification no. 21/2002 - Project Import - Import of gas turbine components and generator transformers - high seas sale - Appellant sought provisional assessment of the goods on the basis of a provisional Mega Power Project Status Certificate, issued by the Ministry of Power, Govt. of India. Later they also informed the Deputy Commissioner of Customs that the words expansion project in of the said certificate were subsequently deleted by the Ministry. A copy of the amendment was also produced by appellant. Appellant had submitted an application to the Deputy Commissioner of Customs for registration of an EPC Contract with its amendments under the Project Import Regulations, 1986 for the purpose of availing the aforesaid exemption for the goods and produced various documents to the department. Held that - The question whether appellant acquired title to the goods said to have been sold to them at the high seas is remanded for fresh consideration. They should be given a reasonable opportunity of being personally heard. The 2400 MW Power Project can be considered to be setting up of new power plant by SPL and cannot be considered to be an expansion project , in the hands of appellant, with reference to 220 MW power plant. The goods covered by Bill of Entry filed by appellant cannot be classified under CTH 9801 and consequently the benefit of project import and exemption under Notification No 21/2002-Cus., read with Notification No. 65/2011-Cus., are not admissible to appellant. The goods covered under the aforesaid two Bills of Entry filed by SPL are liable to be assessed to duty under the respective Headings and, upon such assessment, SPL will be liable to pay the duty and clear the goods in accordance with law. The appeals are disposed of in the above terms.

Issues Involved:
1. Whether M/s. Reliance Infrastructure Limited (RIL) should be treated as the importer of the goods covered under Bills of Entry Nos. 4875426 and 4875427, both dated 10-10-2011.
2. Whether M/s. Samalkot Power Limited's (SPL) requests for registration of an EPC contract under Project Import Regulations, 1986, and for duty exemption under Customs Notification No. 21/2002 are admissible.
3. Whether the provisional Mega Power Project Status Certificate and its amendment issued by the Ministry of Power are valid documents for claiming duty exemption.
4. Whether SPL's request for classification/assessment under CTH 9801 and application for registration of the contract under Project Import Regulations, 1986, is admissible.
5. Whether the goods covered under Bills of Entry Nos. 4875426 and 4875427 should be assessed under their respective CTH sub-headings by charging duty on merits.

Issue-wise Detailed Analysis:

1. Whether RIL should be treated as the importer:
The Deputy Commissioner issued a notice proposing that RIL should be treated as the importer. SPL and RIL contested this, arguing that SPL had purchased the goods at high seas from RIL, making SPL the importer. SPL provided high seas sale agreements and claimed ownership. The original authority did not accept SPL's claim due to the lack of original agreements and endorsed Bills of Lading. The Tribunal remanded this issue for fresh consideration, allowing SPL to produce the necessary documents to substantiate their claim.

2. Whether SPL's requests for registration and duty exemption are admissible:
SPL sought registration of an EPC contract and duty exemption under Customs Notification No. 21/2002. The Deputy Commissioner rejected SPL's requests, stating that the project was an expansion project and not an initial setting up. SPL argued that the 2400 MW project was a new project and not an expansion of the existing 220 MW plant. The Tribunal found that the 2400 MW project should be considered a new project in SPL's hands, as SPL and RIL are different legal entities. The Tribunal held that SPL's request for registration and duty exemption is not admissible under CTH 9801.

3. Validity of the provisional Mega Power Project Status Certificate and its amendment:
The authorities below did not accept the provisional Mega Power Project Status Certificate and its amendment, considering them invalid. SPL argued that the Ministry of Power confirmed the validity of the certificate and its amendment, and SPL was willing to comply with Condition No. 86(aa) of Notification No. 21/2002. The Tribunal noted that the Ministry of Power confirmed SPL's compliance with guidelines and found the certificate valid. However, the Tribunal concluded that the goods covered by the Bills of Entry cannot be classified under CTH 9801, and the benefit of project import and exemption is not admissible to SPL.

4. SPL's request for classification/assessment under CTH 9801 and registration of the contract:
The authorities below rejected SPL's request for classification/assessment under CTH 9801 and registration of the contract, stating that considerable items required for the project had already been imported and cleared on payment of duty. The Tribunal agreed with this view, stating that the items presented by SPL cannot constitute the whole bundle of goods required for the project, and hence cannot be classified under CTH 9801.

5. Assessment of goods under respective CTH sub-headings:
The authorities below held that the goods covered under Bills of Entry Nos. 4875426 and 4875427 should be assessed under their respective CTH sub-headings by charging duty on merits. The Tribunal upheld this decision, stating that the goods should be assessed to duty under their respective headings, and SPL should pay the duty and clear the goods accordingly.

Conclusion:
The Tribunal disposed of the appeals with the following orders:
1. The question of SPL's title to the goods is remanded for fresh consideration.
2. The 2400 MW Power Project is considered a new power plant by SPL and not an expansion project.
3. The goods covered by the Bills of Entry cannot be classified under CTH 9801, and the benefit of project import and exemption is not admissible to SPL.
4. The goods should be assessed to duty under their respective headings, and SPL should pay the duty and clear the goods.
5. In case SPL gives up their claim, RIL's request for clearing the goods should be considered, and if RIL claims the benefit of project import, it should be examined on its merits.

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