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TMI Blog1996 (11) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... mely the DGTD rejected this request. The two Diesel Engine sets were thereafter imported and cleared under the appropriate tariff heading. On 17-7-85 the appellants reiterated their request to DGTD. Vide their letter 5-8-85 addressed to the Customs authorities, the DGTD recommended the inclusion of these two sets under the Project Imports. A reference was made to the importers earlier request dated 29-1-85 in this communication. On the strength of this letter the appellants requested for reclassification of the sets earlier cleared, requested for amendment to the original contract already registered and also filed a refund claim for the differential duty calculated on the presumption that the beneficial rate of duty under Heading 84.66 was available to them. The Assistant Collector rejected the various contentions and rejected the refund claim. This order of the Assistant Collector was upheld by Collector (Appeals) resulting in the present appeal being filed before us. 2. The case for the appellants was argued before us by Shri Srinivasan Murthy, Senior Advocate assisted by Shri D.N. Mehta and Shri C. Chidambaram, Advocates. Revenue was represented by Shri M. Ali, JDR. 3. On b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition precedent to the importation and could not be done post facto. He defended the impugned order. 5. We have carefully considered the submissions made by both the sides. Very substantial case law was referred to by both the sides. We shall consider the ratio of the various judgments during our discussions. 6. The rationale behind the introduction of Tariff Item No. 84/66 has been very succinctly brought out by the Madras High Court in their judgment in the case of Appraiser, Madras Customs v. Tamil Nadu Newsprint Papers Ltd., reported in [1988 (36) E.L.T. 272 (Mad.)]. An extract from Paragraph-8 reads as under : The purpose of introducing Heading No. 84.66 in the first Schedule is to avoid hardship to the importers in establishing new projects which may be caused by a delay in clearance by the Customs authorities. In respect of setting up of project initially or extending an existing project, various equipments, machinery, apparatus, raw materials spares and consumables, will be required. In the normal course, those items are classifiable under different tariff heads, and they will attract different rates of Customs duty. It would involve careful scrutiny of each and ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Collector of Customs, Ahmedabad, reported in [1983 (12) E.L.T. 829 (CEGAT)] observed as under : The Heading 84.66 has an overriding application to cases where imports of machinery, instruments, components and raw materials are required for initial setting up of a unit or for substantial expansion of an existing unit of the specified or approved industry subject to the condition of the contract for import being duly registered with the Collectorate of Customs before clearance of the goods for home consumption. If any of these conditions are not satisfied, the goods will be assessed under their respective specific heading occurring elsewhere in the Customs Tariff. In their decision in the case of Satelite Communication Project v. Collector of Customs, reported in [1989 (41) E.L.T. 579 (Tribunal)], the Tribunal held that it was a statutory condition of this Heading (84.66 CTA) that the contract under which the goods were imported should have been registered with the Customs prior to the clearance of the goods. When not so registered the benefit of the Heading cannot be extended to the appellants. The decision of the CEGAT in the I-Lite Optics, Alwar v. Collector of Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived on 2-4-83. Even if the respondents were keen to avoid demurrage charges, they could have removed the goods to the warehouse which is a situation contemplated in Proviso to I.T. 84.66 but, instead, they chose to clear the goods on full payment of duty. The fact that they subsequently registered the contract cannot entitle them to the benefit of the concessional rate of duty. The grievance had been made before us that the appellants should not suffer because of the delay occurring in the DGTD office. This argument arises from the fact that whereas initially vide communication dated 15-3-85, the DGTD had denied the recommendation, they had acceded to this request later. We find that the attempt of the appellants to include these two sets in the ambit of the original contract was clearly an after thought as it arose to the requirement realised subsequent to the importation of the main plant. We, thus, find no merit in the claim of the appellant that the requirement of registration of the contract indicating the intention to put specific goods was a mere formality and that in the larger interest of the economy, need not have been insisted upon by the authorities. In voicing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere cleared earlier to the present imports. The law cited for liberal interpretation, etc, therefore, cannot apply in this case. Some judgment before us deal with the includibility or otherwise of the contested goods. In their judgment in the case of Punjab State Electricity Board, Patiala v. Collector of Customs, Bombay, reported in [1987 (27) E.L.T. 432], the Tribunal held that the self-propelled vehicle for transportation of transformers could not be treated as auxiliary equipment to qualify for assessment as project import. It is doubtful whether DG set could be considered as auxiliary equipment for the plant manufacturing cement. However, such a reservation could not have survived in view of the judgment of the Calcutta High Court in the case of Asiatic Oxygen Ltd. v. Assistant Collector of Customs cited (supra) in which it is held that recommendation made by DGTD was mandatorily to be accepted by the Customs authorities. The following citations made before us are not germane to the issue and, therefore, not discussed : 1. 1985 (22) E.L.T. 84 (Tribunal) - Partap Rajasthan Copper Foils Laminates Ltd., Jaipur v. Collector of Customs, Bombay. 2. 1993 (64) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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