2019 (5) TMI 271 - AT - Customs

Import of speco hot mix plant 200 TPH 2500 FFW - eligibility of a consortium partner to be entitled to the benefit of the said notification for import of goods required for construction of roads without payment of duty - Benefit of N/N. 21/2002-Cus dated 1st March 2002 - HELD THAT - The notification itself specifies that deployment for construction of roads for five years is a mandatory qualification of eligible importer at the threshold as well as for continual exemption. The Tribunal, in GAMMON INDIA LTD. VERSUS COMMISSIONER OF CUSTOMS (IMPORT), NHAVA SHEVA 2013 (4) TMI 598 - CESTAT MUMBAI , has segregated the dichotomous condition - one at the threshold for eligibility to import without payment of duty by the entities listed therein and the other for continuing eligibility based on specified deployment for a specified time - before holding that both are mutually exclusive. The procedure following the award in the impugned project required establishment of a special purpose vehicle and it is that special purpose vehicle which takes the bid process to its logical conclusion by entering into an agreement with the awarding agency. Restricting the eligibility to the subsequently created artificial person, emerging from the contractual compulsion to fulfil a structuring requirement, would incapacitate the execution of the work and the original intent of the extent of the notification was thus amplified, and articulated, in the referred clarification. The denial of exemption notification does not have the authority of law - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Eligibility for exemption under notification no. 21/2002-Cus dated 1st March 2002.
2. Compliance with condition no. 40 of the notification.
3. Interpretation of terms "concessionaire" and "sub-contractor."
4. Applicability of judicial precedents and clarifications issued by the Central Government.

Detailed Analysis:

1. Eligibility for Exemption under Notification No. 21/2002-Cus:
The appellant imported 'speco hot mix plant 200 TPH 2500 FFW' claiming the benefit of exemption under notification no. 21/2002-Cus. The goods were covered by serial no. 230 in list 18 appended to the notification, which entitles them to exemption from basic and additional duties of customs if used for road construction. The Commissioner of Customs (Appeals) upheld the ineligibility for exemption due to the absence of the claim in the bill of entry and lack of required documentation at the time of assessment.

2. Compliance with Condition No. 40 of the Notification:
Condition no. 40 specifies that the goods must be imported by entities such as the Ministry of Surface Transport, National Highway Authority of India, or a person awarded a road construction contract by these authorities. The condition also requires an undertaking that the goods will be used exclusively for road construction and not sold for five years. The appellant obtained the necessary certification at the time of clearance, which was beyond the assessing officer's purview, leading to the denial of the exemption.

3. Interpretation of Terms "Concessionaire" and "Sub-contractor":
The appellant argued that the concession agreement for the Hyderabad-Vijayawada section of National Highway-9 was awarded to a consortium, including the appellant. A special purpose vehicle (SPV) named GMR Hyderabad Vijayawada Expressways Pvt Ltd was formed for this purpose. The first appellate authority's narrow interpretation of "concessionaire" and the absence of the appellant's name as a sub-contractor in the contract were cited as reasons for denial. The appellant relied on a liberalized view provided in a letter by the Joint Secretary (TRU-I) dated 10th July 2014, which clarified that consortium members named in the contract could import goods under the exemption.

4. Applicability of Judicial Precedents and Government Clarifications:
The Learned Authorised Representative cited judicial decisions advocating strict application of eligibility criteria for the exemption. The Tribunal in Gammon India Ltd v. Commissioner of Customs (Import), Nhava Sheva and the Hon'ble Supreme Court in Gammon India Ltd v. Commissioner of Customs, Mumbai had previously denied similar exemptions for failing to meet condition no. 40. However, these decisions predated the 2014 clarification by the Central Government, which allowed consortium members to import goods under the exemption.

Conclusion:
The Tribunal determined that the threshold eligibility for exemption was the primary issue. The earlier decisions were rendered without the benefit of the 2014 clarification, which explicitly allowed consortium members to import goods under the exemption. The Tribunal concluded that the denial of the exemption lacked legal authority and set aside the impugned order, allowing the appeal.

Judgment:
The appeal was allowed, and the denial of the exemption notification was set aside. The Tribunal emphasized the importance of adhering to the clarified intent of the notification as declared by the Central Government.

Pronouncement:
The judgment was pronounced in Court on 03-05-2019.