2017 (7) TMI 154 - AT - Customs

Project import - denial of benefit of concessional rate of duty - Held that - the contract is required to be registered, and the assessment of project imports is required to be provisional and subject to final assessment within three months of the clearance of the last consignment in the contract. Reclassification of imported goods under heading 8462.99 - Held that - The consequence of classification under 9801 of the First Schedule to the Customs Tariff Act, 1975 is the bundling of goods; and the conditions that are prescribed in the regulations are related to that bundling for increasing the production capacity of the economy. There is no condition other than import in that state for installation in that form. There is no allegation of disaggregation of the imported goods and, therefore, its possession by another entity does not detract from the principal objective of such bundled classification, i.e. capacity building - Eligibility for such classification at the time of import, compliance with project approval conditions and installation at the permitted site are not in dispute here. Classification as project import and assessment thereof cannot be denied. Appeal allowed - decided in favor of appellant.

Issues: Denial of concessional rate of duty for project imports under heading 9801, re-classification of imported goods, differential duty confirmation, confiscation of goods, penalty imposition, relocation of imported machinery, interpretation of Project Import Regulations, 1986, applicability of judicial precedents, conditions for project imports, eligibility for concessional rate of duty, ownership and possession requirements, classification under heading 9801, relocation impact on classification, perpetual liability for project imports.

Issue 1: Denial of Concessional Rate of Duty and Re-Classification:
The Commissioner of Customs denied M/s Whirlpool of India Ltd the benefit of concessional rate of duty for project imports under heading 9801, re-classified the imported goods under heading 8462.99, confirmed a differential duty, and imposed a penalty. The appellant contested this decision, arguing that the imported machinery had been installed at the specified premises during import, and there was no restriction on relocation in the Project Import Regulations, 1986. The appellant relied on the definition of 'unit' in the Customs Tariff Act, 1975 and contended that the decisions cited by the original authority were not applicable to the case. The Tribunal analyzed the regulations and concluded that registration of the contract and finalization within a specified time were required, but no restriction on relocation was mentioned. The decision in Toyo Engineering was cited in favor of the appellant, emphasizing compliance with project approval conditions and installation at the permitted site.

Issue 2: Interpretation of Project Import Regulations and Judicial Precedents:
The Tribunal examined the Project Import Regulations, 1986, which mandated registration of contracts and finalization within a stipulated time. It was noted that the machinery should be installed as per the contract terms for establishing a new unit or substantial expansion. The Tribunal considered the decision in Tata Steel Ltd, emphasizing substantial expansion for project imports. However, in the present case, evidence of relocation leading to substantial expansion was presented by the appellant, rendering the Tata Steel Ltd decision inapplicable. The Tribunal also referred to the decision in Jacsons Thevara, highlighting non-implementable claims of substantial expansion due to prior agreements.

Issue 3: Ownership and Possession Requirements for Project Imports:
The Tribunal discussed the perpetual ownership and possession requirement for project imports, citing the decision in Commissioner of Customs v. Toyo Engineering. It was clarified that perpetual ownership and possession by the project authority were not mandatory conditions for eligibility for concessional duty. The Tribunal emphasized that the classification and assessment at the time of import should not be affected by subsequent ownership transfer or relocation after meeting project objectives.

Issue 4: Classification Under Heading 9801 and Impact of Relocation:
The Tribunal analyzed the classification under heading 9801 of the Customs Tariff Act, 1975, emphasizing the bundling of goods for capacity building. It was highlighted that the conditions prescribed in regulations were related to this bundling for increasing production capacity. The possession of imported goods by another entity after installation did not detract from the objective of capacity building. The Tribunal concluded that eligibility for classification as a project import, compliance with project approval conditions, and installation at the permitted site were not in dispute, leading to the allowance of the appeal.

In conclusion, the Tribunal allowed the appeal, emphasizing compliance with project approval conditions, installation at the permitted site, and the classification of goods at the time of import. The judgment clarified the requirements for project imports, ownership and possession conditions, and the impact of relocation on classification under heading 9801.

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