9911796707
TMI Blog2000 (9) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... ry were shown as under : Plant and machinery FOB - Rs. 3,91,20,946/- Ins.+ Frieght (estimated) - Rs. 18,00,000/- Total - Rs. 4,09,20,946/- Value of spares (FOB) - Rs. 39,49,162/- Insurance + Frieght - Rs. 3,50,000/- (estimated) Total : - Rs. 42,99,612/- The application for registration of contract contained 12 items. Appendix A to the registration application referred to the list of plant and machinery enclosed at Annexure 3. The FOB value as shown in Annexure 3 mentioned total FOB value for 12 items as Rs. 5,61,03,798.60 and the cost of items 1, 2, 3, and 4 as Rs. 1,30,33, 242.00. In the endorsement to Annexure 3 it was noted Item Nos. 1, 2, 3, and 4 not to be imported under concessional rate of duty under Project Import. The import licence No. P/CG/2042991 dated 15-3-1988 was valid for import of 13 items of machinery with a total CIF value Rs. 6,72,89,800. They also produced DGTD letter dated 22-3-89 with recommendation to allow clearance of the goods valued at Rs. 6,75,89,800/- covered un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommendation for import of 13 items of capital goods with a CIF value of Rs. 6.76 crores at the concessional rate of duty permitted under the Project import. They had also furnished a letter of gurantee for Rs. 6.8 crores to cover the value of the goods to be imported and 10% Bank Guarantee. However, in their application for registration of the contract they had stated that they intended to import only Rs. 4.09 crores worth of machinery. In accordance with Annexure 3 to the application they had indicated that item Nos. 1 to 4 are not to be imported under the Project Import facility. Collector observed that the Assistant Collector of Customs who registered their contract had apparently not noticed the variation between the value of the machinery shown in the import licence and the DGTD recommendation letter on the one hand and the application for registration of the contract. Further, it was also on record that one of the items, namely, flat die (one of the items in the list of machinery to be imported) had already been imported and cleared by the respondents on payment of duty on 22-2-89, well ahead of the obtaining of the DGTD recommendation for Project Import facility as well as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect import facility in respect of machineries at Sl. Nos. 1, 2, and 4 of the list attached to the licence, this fact should have been known to the Assistant Collector registering the contract and if he had failed to notice the discrepancies, it could only be due to negligence and no charge of suppression of facts against the applicants could be sustained. On the question as to why they had registered the contract for the entire amount of Rs. 6.76 crores whereas the application for the registration of the contract was only for Rs. 4.09 crores, Collector observed that it was for the Assistant Collector who registered the contract to have noticed the discrepancy and reconciled the same. The Collector further observed that "the very fact that the Assistant Collector registered the contract despite the variation shows that the Department accepted the contention of the party and their application for availment of the project import facility should have been deemed to have been amended to that extent". On the basis of the findings that there was no short levy involved in the goods, Collector did not go into the question of limitation. 6. In the Grounds of Appeal filed by the Collector, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly lacked jurisdiction and was contrary to the general practice of issuing TRA. He also submitted that the respondents while filing the Bill of Entry had not made any endorsement to the affect that the goods issued under the project imports. Both according to the project register with the Delhi Collectorate and also in accordance with the licence issued for the project and to that extent the statement made in the Bill of Entry was not true and therefore in terms of Section 17(4) of the Customs Act the Collector could still ask for re-assessment. 8. Shri Ajay Dutta, Ld. counsel who appeared for the respondents submitted that the respondents are unnecessarily being blamed for the administrative lapses of the Department. He referred to the application filed by the respondents for registration of contract wherein they had clearly indicated in column No. 9 that the total value of the goods to be imported is about Rs. 4.09 crores and in Annexure 3 attached to the application they had indicated at the bottom that item Nos. 1, 2, 3 and 4 are not to be imported under the concessional rate of duty under project import. It was also not in dispute that machinery covered under Sl. No. 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to the said variation. We agree with the conclusion of the Collector on this aspect as recorded by him in paragraph 17 of his order. We also agree with him that since the allegation of short levy difference is not sustainable, invokation of the longer period would not arise. 10. Departmental appeal is rejected in view of our above findings. Sd/- (A.C.C. Unni) Member (J) 11. [Contra per : S.K. Bhatnagar, Vice President]. - I observe that this case has arisen w.r.t. the registration for Project Import in terms of Heading 98.01 read with Project Import Regulations as they stood during the relevant period. 12. It is well-known that this is a special provision under Chapter 98 which applies to all goods which satisfy the conditions prescribed therein even though they may be covered by more specific heading elsewhere in this Schedule (as per Chapter Note 1 of Chapter 98). Again as per Chapter Note 2 Heading No. 98.01 is to be taken to apply to all goods which are imported in accordance with the regulations made under Section 157 of Customs Act, 1962 (52 of 1962) and expressions used in this heading shall have the meaning assigned to them in the said regulations. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers in this regard once the number and description of items and licence value is not amended by the competent authority. Once a licence has been granted, application for registration of the contract has been filed and registered by the Customs Authorities an amendment is permissible only if the contract which has been registered is itself amended, whether before or after registration and only in such cases the A.C. or the authorised proper officer of Customs shall be competent to permit amendment; and even the A.C. was required to take cognizance of such an amendment only after the document if any permitting consequential amendments to the Import Trade Control licence have been filed along with the original deed and the amendments thereto. It is only in the case where the goods do not require any specific licence (and should be imported under OGL) that sponsoring authorities come into picture and not otherwise. 16. In the present case no document has been filed to show that this procedure was followed and a mere indication by the importer on his own accord that four items were not to form part of the Project Import was neither sufficient nor proper or permissible and of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther words, the process includes and involves re-assessment of nominally assessed and tentatively cleared consignments in terms of Section 17(4) read with the provisions of this scheme and the assessments are finalised after all the importations had taken place. Once the Project Import assessment is so finalised only thereafter the question of time-bar arises. 21. Even otherwise, once the goods form the part of the contract which had been licensed for and registered under the above scheme as aforesaid and were imported thereafter the appellant were duty-bound to show the heading as 98.01 and give correct and complete declaration indicating clearly that they are part of the Project Import in order to enable the proper officer to assess them nominally and leave the final assessment to be done at the time of finalisation of the Project Import assessment as a whole. Non-indication of these facts on the Bill of Entry would only mislead the officers and was not permissible. 22. In another way also any suo motu indication in an annexure of this type could only amount to tampering with the list approved by the licensing authority; and there is no concept of the so called deemed accepta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistration or not, is the issue to be considered in this Appeal. 27. Arguing for the Revenue, Shri M.P. Singh, ld. SDR submitted that the dispute is in respect of the four items imported prior to the date of registration under Project Import. He said that he is not pressing the issue with reference to the item viz., Flat-die , since it was imported by the Respondents on 19-2-89 under OGL prior to the date of application for registration. Nevertheless other three items viz., (a) Extrusion Plant, (b) Casting machine, and (c) Edge Trim Recycling System are to be assessed under Project Import Regulation (Registration of Contract), as these three items were covered under licence issued by the competent authority on 15-3-1988. He submitted that these three items were imported on 31-3-89 by filing a Bill of Entry and there was a reference of import licence in the relevant Bill of Entry. He submitted that Bill of Entry is to be assessed in the way it was presented since the licence was referred to therein and the conditions of import licence are relevant in determining the assessment of the goods in question. These items were covered under licence and accordingly contract was done und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted before us that benefit in payment of basic duty and additional duty, in terms of Notification No. 268/76, dated 2-8-1976, has already been obtained by the appellant for importing the machinery as per contract registered with the Customs Authorities under Tariff Item 84.66. Having so obtained that benefit by claiming the imported machinery to be covered by tariff Item 84.66, it was not open to the appellant later on to canvass much less claim that the machinery in question is covered by Tariff Item 84.31 for receiving the benefit of total exemption under Notification 62/83 and that it is not liable to pay auxiliary duty at the reduced rate of 20% on goods falling under Tariff Item 84.66 under Notification No. 61/83. Whether or not the specific machinery imported by the appellant is also covered by Item No. 84.31 under the circumstances, was irrelevant and apparently a devise to claim un-available benefit under Notification 62/83 . 29. Shri A.N. Haksar, ld. Senior Counsel appearing for the appellants submitted that licence is different from assessment. Licence may be required for importation depending upon the law prevalent at that time. Some goods are permitted to be importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent Bill of Entry dated June 20, 1983. The Tribunal has, therefore, rightly found that the appellants were liable to pay customs duty at the normal rate in accordance with the Notification No. 116/79, dated June 1, 1970 on the basis of which the goods had been imported. 30. I have carefully considered the matter. There is no dispute that the Respondents had clearly indicated that they did not intend to avail the Project Import facility in respect of machineries at sl. Nos. 1, 2, 3 and 4 of the list attached to the licence at the time of filing the application for registration of Project Import benefit. Admittedly items 1, 2, 3 and 4 were imported much prior to the date of registration. First item was imported on 19-2-89 and the remaining three items were imported on 31-3-89. The application for registration was submitted on 9-3-89 indicating the above items to be excluded and the contract under Project Import regulation was duly registered on 5-4-89 with reference to the application submitted by the party. I am not convinced with the arguments advanced on behalf of the Revenue since the items were covered under licence, all the items are to be treated as one and the same for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
