2003 (4) TMI 183 - AT - Customs

Summary

Issues Involved:
1. Maintainability of the appeal filed by a successor Commissioner.
2. Applicability of the extended period of limitation.
3. Eligibility for concessional duty under the Project Import Scheme.
4. Compliance with Project Imports Regulations, 1986.
5. Applicability of Section 111(o) of the Customs Act, 1962.
6. Entitlement to exemption under Notification No. 154/86.

Issue-wise Detailed Analysis:

1. Maintainability of the appeal filed by a successor Commissioner:
The respondents raised a preliminary objection that the appeal was not maintainable as it was filed by Shri M.G. Venugopalan, the successor to Shri S.S. Sekhon, who had passed the original order. The Tribunal found that since Shri M.G. Venugopalan was the successor Commissioner and filed the appeal as per the Board's direction, the appeal was maintainable.

2. Applicability of the extended period of limitation:
The respondents argued that the order-in-review did not challenge the finding regarding limitation, making the appeal infructuous. However, the Tribunal noted that both the order-in-review and the appeal raised the issue of confirmation of demand under the proviso to Section 28(1) of the Customs Act, 1962, which deals with the extended time period for duty demands. Therefore, the Tribunal dismissed the preliminary objection concerning the limitation.

3. Eligibility for concessional duty under the Project Import Scheme:
It was undisputed that the machinery was imported for the Waluj unit but was installed at the Thane unit without Customs authorities' permission. The Tribunal examined whether machinery imported under concessional duty rates could be installed at a different location than specified. It concluded that the project import benefit under Heading 98.01 is specific to a unit at the specified location.

4. Compliance with Project Imports Regulations, 1986:
The Tribunal emphasized that the Project Imports Regulations require registration of the contract with reference to the project's location and compliance with the regulations for concessional duty assessment. The respondents failed to comply with these regulations by shifting the machinery to a different location without intimation or permission.

5. Applicability of Section 111(o) of the Customs Act, 1962:
The Tribunal referred to the Apex Court's decision in Jacsons Thevara v. Collector, which held that Section 111(o) applies to confiscation of goods where concessional duty conditions are violated. It concluded that the respondents' actions warranted the application of Section 111(o) for confiscation and penalty due to the breach of conditions under the Project Imports Regulations.

6. Entitlement to exemption under Notification No. 154/86:
The respondents argued that they could be entitled to a lower duty rate under Notification No. 154/86, which was not considered by the Commissioner. The Tribunal remanded the case to the Adjudicating Commissioner to re-adjudicate and allow the respondents to plead for exemption under this notification.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the Adjudicating Commissioner for re-adjudication, allowing the respondents to plead entitlement to exemption under Notification No. 154/86. The Department's appeal was allowed by way of remand.