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TMI Blog2010 (9) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962 (in short the Act ) for settlement of case arising out of Show Cause Notice issued under F. No. CIU/GEN-MISC-87/2007-VA/3/26-Misc-92/2010 VA, dated 29-6-2010 by Commissioner of Customs (Imports) Mumbai-I demanding customs duty of Rs. 1,46,00,628/- and interest of Rs. 28,14,121/- besides invoking penal provisions under the Act and Rules made thereunder. 2. The brief facts of the case are that the applicant had imported and cleared Hydraulically Operated Self Propelled Piling Rig Model NO. HR260, Serial No. HR-2600260104 with accessories (hereinafter called as Rig or Machine ) vide B/E No. 688223, dt. 30-6-06 after claiming the benefit of conditional duty exemption under Sr. No. 230 of Notification No. 21/2002-Cus., dt. 1-3-02. At the time of import the applicant had submitted an undertaking that they will use the said Piling Rig exclusively for the construction of National Highway only as per conditions of the said Notification. 2.1 Central Intelligence Unit (CIU), Mumbai gathered intelligence that the subject Rig was not used for Road construction projects of National Highway. Hence following import documents were procured by CIU. (a) B/E No. 688233, dated 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/2002-Cus., dated 1-3-02 for the Piling Rigs used at Bangalore project of NHAI. 2.7 The said Rig was engaged at Bangalore from 23-7-06 to 17-3-08. Thereafter the said Rig was sent to Chennai to be used for the Metropolitan Railway Transport System Project of Indian Railways and being used there till then. The usage of the Rig for the Metropolitan Railway Transport System Project of Indian Railways also disqualifies the Rig from exemption of Customs duty as the Indian Railway is not a Road Construction Agency nor the Metropolitan Railway Transport System Project was a Road Construction Project; that the usage of the said Rig for both these projects was in violation of the conditions laid down in the said Notification. 3. Show cause Notice No. CIU/GEN-MISC-87/2007-VA/3/26-Misc-92/2010 VA was issued by the Commissioner of Customs (Imports), Mumbai wherein the applicant was required to show cause as to why : the subject Rig having assessable value of Rs. 3,97,44,429/- should not be confiscated under Section 111 (o) of the Customs Act, 1962 the benefit of concessional duty should not be denied and duty amount of Rs. 1,46,00,628/- foregone at the time of clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case on its merits instead of relying too much on the said final order in the referred case. 5.2 The ld. Advocate submitted that the imported Rig was diverted to another NHAI project at Bangalore as the land site in Assam was not ready and available due to heavy rains and insurgency in Assam. The Id. Advocate further submitted that keeping the machine idle would have resulted in incurring of heavy loss to the applicant apart from the machine getting mechanical decay. 5.3 The ld. Advocate submitted that the Bangalore project was awarded to a consortium and that the applicant is one of them. Moreover this project is a 20 year project. With regard to the usage of the Rig for Chennai Metropolitan Railway Transport System the ld. Advocate s contention was that this is also a Government of India project though exactly not a NHAI project. Thus the ld. Advocate argued that the said Rig was used only for government projects and not for any private projects. 5.4 The ld. Advocate further submitted that the applicant had admitted and paid duty liability of Rs. 1,46,00,630/- as demanded in the SCN and paid interest liability of Rs. 28,14,121/-. Further, the ld. Advocate submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest of Rs. 28,14,121/-. The case relates to violation of post importation conditions stipulated under Notification No. 21/2002-Cus., dated 1-2-2002 which was availed by the applicant for duty free import of Hydraulically Operated Self Propelled Piling Rig to be used for road construction purpose at the site of the road project awarded by NHAI. The applicant has contended that the imported goods were diverted to another NHAI Project at Bangalore only and there was no deliberate intent to violate the conditions of exemption stipulated under the said Notification, even though they are not contesting, in the spirit of settlement, the violation of the conditions as alleged in the SCN. The Revenue has, however, opposed the prayer of the applicant for granting full immunity from fine, penalty etc on the ground that the applicant had suppressed the facts from the Customs authorities that the said project where the imported rigs were to be deployed was not yet ready and had deliberately given false affidavit at the time of Customs clearance with a view to wrongfully avail exemption under Notification 21/2002 despite the knowledge that the imported machines would not be used at the declar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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