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TMI Blog2006 (9) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of items covered by the entries in the Notifications Surface Dressing Equipment (Self Propelled) (Chips Spreader) . 2. Vide impugned order, the Commissioner has denied the benefit of Notification to Motor Grader MG 330 on the finding that the same cannot be said to be covered by the entry inasmuch as the same is not used for Surface Dressing of the road or as a Chips Spreader. Accordingly, demand stands confirmed against the appellants and the goods confiscated with an option to the appellants to redeem the same on payment of redemption fine, along with imposition of personal penalties. The said order is impugned before us. 3. We have heard Shri T. Vishwanathan, ld. Advocate appearing for the appellants and Shri R.B. Pardeshi, ld. DR appearing for the revenue. 4. As per facts on record, the appellants were awarded the contract for construction of National Highway in India by the National Highway Division, Ahmedabad. They imported one Mitsubishi Motor Grader MG 330 (Surface Dressing Equipment) and filed Bill of Entry by claiming the exemption in terms of the above Notification. The Bill of Entry was assessed provisionally except in the case of M/s. Ircon international L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 40 mm thickness BC consisting of bitumen aggregates, stone dust and fines. It is laid with the help of sensor paver and compacted with vibratory roller and make the surface proper profile and shape. He further stated that surface dressing is defined as bituminous surface dressing and Clause 508 of MOST specifications, 3rd edition, 1995 referred to it. In this bitumen is first spread with the help of a sprayer and then stone chipping are spread uniformly over it with the help of self propelled or towed mechanical grid spreader and compacted with roller. Thereafter, a seal coat is applied over it which consists of coarse sand and bitumen to give smooth surface. He further clarified that motor grader is not used in bituminous surface dressing and that this item is not used in the construction of Highways. It is mostly used in the construction of minor village roads or maintaining the minor roads. He stated that motor grader and self propelled chips spreader are different and distinct equipment/machines. He further stated that the earlier clarification dated 15-6-99 issued by him to M/s. BSC RBM, J.V., Hyderabd was not for the purpose of subject exemption benefit. 7. The revenue al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the goods and imposed penalties. Hence the present appeals. 11. After hearing both sides, we find that the dispute in the present appeal relates to determination of the question as to whether Motor Grader could be treated as Surface Dressing Equipment (Self Propelled) (Chips Spreader). It is seen that the Notification specifically lists the above machine as entitled to exemption and it is not that all the equipment or machinery required for the construction of the road had been extended the exemption. The said Notification also covers various other items used for construction of the road. As such, it has to be held that only if Motor Grader can be considered as Surface Dressing Equipment, Chips Spreader, the same would be covered by the exemption Notification. The appellant s contention that legislative intend should be kept in mind, while interpreting the Notification cannot be accepted inasmuch as there is no ambiguity in the language of the Notification, which is clear and, as such, there is no need to go to legislative intent or invoke the principles of contemporaneous expositio. It is the appellant, who is claiming the benefit of Notification and it is for them to estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly an earth moving machine performing the functions of levelling, grading, etc. and finishing of earth work. In the same book, Chapter 3 details the guidelines for the selection of equipment for each stage of operation in road building. It also outlines the various types of equipments used in road building. Table 3.2 is titled selection of plant for earth moving operations. This table refers to various individual operations listed in Sl. Nos. l to 11 and in almost all these operations one of the equipments mentioned in a motor grader. Table 3.3 is titled selection of plant for compaction. This refers to five different types of operations for each of which the equipments are specified. Table 3.4 refers to selection of plant for bituminous pavement. This table has five serial numbers covering different operations. Sl. No. 1 refers to surface dressing and among the equipments mentioned for this operation is a Chip Spreader. From the above, it may be seen that the equipments have been mentioned sequentially with the different stages involved in building a road. It starts with earth moving operations and ends with bituminous surface. The operation of surface dressing in which chip sprea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he various technical books produced before us, it emerges that basically surface dressing involves spraying bitumen on a clean, dry road surface, over which stone chippings are spread and surface is then rolled to embed the aggregate and final swept to remove any loose stone before traffic is allowed to move on the new surface. Motor Grader is admittedly used for spreading of road materials for the inner layers of the road and not for the surface layer. When the notification specifically uses the unambiguous expression surface dressing equipment , we fail to appreciate that the benefit should be extended to the equipment used for making and dressing the inner layers. 15. Similarly, the appellant s contention is that the expression Chips Spreader appearing in the relevant entry of the Notification is only by way of illustration example and cannot be held to be exhaustive is not impressive. The Notification clearly uses the expression Surface Dressing Equipment Self Propelled Chips Spreader . As such, the Chips Spreader is not by way of an example appearing in the said entry but the entry itself refers to Chips Spreader. As such, we held that the entry relates to the Surface Dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the goods have not been used for construction of highways or have been transferred, sold or disposed of in contravention of the Notification. The demand of duty has to be raised in terms of the provisions of Section 28 of the Customs Act, within the normal period of limitation and in the absence of any suppression, misstatement, etc., longer period cannot be invoked. The entire facts were placed by the said appellants before the Customs authorities and it is only thereafter the benefit of notification was extended to the appellants. In fact in another file of importer of identical goods, the Commissioner has taken the same view. As such, it cannot be said that the appellant s claim of exemption was on account of any mala fide intentions. Show cause notice issued after a lapse of period of three years from the date of importation is barred by limitation, in the absence of any provisional assessments. As such, we set aside the demand of duty in the case of M/s. Iron International as bar by limitation. 17. Inasmuch as the demands in the other two appeals has been admittedly raised within the limitation period and in view of our findings above as regards merits of the case, de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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