2018 (12) TMI 1122 - AT - Customs

Benefit of exemption - import of specified goods - Deployment of road Construction projects - N/N. 21/2002-Cus dated 1st March 2002 - import of hydraulically operated self-propelled piling rig Model No. HR-80 - appellant did not comply with the timelines insisted upon in the adjudication proceedings - Held that - The utilisation for some work on behalf of M/s Delhi Metro Rail Corporation, indisputably not among the statutory instruments enumerated in the exemption notification, as well as other bodies has been held to be breach of the undertaking. An averment of an official of the said Corporation has been relied upon to exclude the possibility of deployment in road contracts. As for as the other deployments are concerned, the adjudicating authority could not be expected to arrive at a conclusion in the absence of material furnished by the noticee. The appellant, admittedly, did not comply with the timelines insisted upon in the adjudication proceedings. The reasons for such failure were placed on record before the original authority. The deployment on any road construction project would suffice for continuing entitlement to the exemption, the object of utilisation on the different projects must be examined - the matter is remanded back to the original authority before whom the appellant shall produce details of deployment and that authority shall cause the veracity to be ascertained before rendering a fresh adjudication order - appeal allowed by way of remand.

Summary

Issues Involved:
1. Compliance with Notification No. 21/2002-Cus dated 1st March 2002.
2. Breach of conditions of exemption notification and consequential liabilities.
3. Adjudication process and denial of cross-examination.
4. Imposition of penalties on individuals under Section 112 of the Customs Act, 1962.
5. Consideration of subsequent amendments to the exemption notification.

Detailed Analysis:

1. Compliance with Notification No. 21/2002-Cus dated 1st March 2002:
M/s Gammon India Ltd imported a ‘hydraulically operated self-propelled piling rig Model No. HR-80’ valued at ?2,34,57,654 and claimed exemption under Notification No. 21/2002-Cus. The exemption was subject to compliance with Condition No. 40, which required the importer to use the goods exclusively for road construction and not to sell or dispose of them for five years. The importer furnished an undertaking and submitted an agreement with the National Highway Authority of India (NHAI) as evidence of eligibility.

2. Breach of Conditions of Exemption Notification and Consequential Liabilities:
The goods were transported to Taloja and then to Delhi, where they were used for a project with the Delhi Metro Rail Corporation (DMRC) and other projects, including one for NHAI. The original project with NHAI did not materialize. The Commissioner of Customs (Import), Mumbai, decided ex parte that the conditions of the exemption notification were breached, resulting in customs duty liability, interest, confiscation with fine for redemption, and penalties. The primary contention of the appellants was that they were compliant with the conditions and should have been given more time to submit evidence.

3. Adjudication Process and Denial of Cross-Examination:
The appellants argued that their request for cross-examination of a DMRC official was denied and that the duty liability should have been computed after allowing depreciation for the period of deployment on road works. The imposition of penalty under Section 114A of the Customs Act, 1962, without being invoked in the show cause notice, was also contested. The appellants cited various judgments to support their claims, including the decision of the Hon’ble High Court of Delhi in Noble Moulds Pvt Ltd v. Commissioner of Central Excise and the Hon’ble Supreme Court in Commissioner, Sales Tax, UP v. M/s Anoop Wines.

4. Imposition of Penalties on Individuals Under Section 112 of the Customs Act, 1962:
Penalties were imposed on two employees, Shri Umakant Tiwari and Col Charan Singh, under Section 112 of the Customs Act, 1962. The appellants argued that there was no evidence or allegation that these individuals were instrumental in the breach leading to confiscation. They cited decisions emphasizing the need for isolating the role of each individual in the breach. The Tribunal found that there was no specific act of omission or commission by these individuals that contributed to the confiscation, and therefore, the penalties on them were not sustainable.

5. Consideration of Subsequent Amendments to the Exemption Notification:
The appellants argued that the restriction on use in other projects was liberalized in 2010 by a substitution in the exemption notification, which should be considered clarificatory and applied retrospectively. The Tribunal acknowledged that the exemption notification was intended to support road infrastructure development and that optimum utilization of the goods should not be objectionable in principle. The Tribunal concluded that the exemption was not intended for exclusive use in contracts furnished as evidence of entitlement and that deployment on any road construction project would suffice for continuing entitlement to the exemption.

Conclusion:
The matter was remanded back to the original authority to examine the details of deployment of the imported goods and ascertain their veracity before rendering a fresh adjudication order. The penalties imposed on the two individuals, Shri Umakant Tiwari and Col Charan Singh, were set aside. The appeals of these individuals were allowed.