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TMI Blog2012 (3) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... or but as a sub-contractor. But even in those cases, they were not named as a sub-contractor - appellant to make a pre-deposit of 50% of the customs duty within eight weeks - C/794 to 796/2010 - S/164 TO 166/2012/CSTB/C-I - Dated:- 3-1-2012 - Ashok Jindal, P R Chandrasekharan, JJ. For Appellant: Anil Kumar Mishra, Consultant For Respondent: P N Das, Commissioner (AR) Per: P R Chandrasekharan: 1. The appeals and stay applications are directed against the Order-in-Original no. 65/2010/CAC/CC(I)/SHA Gr. VA dated 30.07.2010 passed by the Commissioner of Customs (Imports), Mumbai. 2. The facts arising for consideration of this case are as follows:- 2.1 The appellant M/s Apco Construction (P) Ltd., Lucknow imported one unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall use the imported goods exclusively for the construction of roads and that he shall not sel or otherwise dispose of the said goods, in any manner, for a period of five years from the date of their importation:" 2.2 At the time of importation the appellant produced letters dated 26.05.2005 and 14.01.2006 from the Superintending Engineer, Rural Engineering Services, Lucknow, certifying that the appellant's bid for construction and maintenance and PMGSY road in Rae Bareli District and Barabanki District in the State of UP had been accepted and also a copy of the contract bond dated 31.03.2005 wherein the appellant was awarded the contract for constructin of Milkipur-Amanganj Road, length 17.5 KM in the State of UP and the benefit of cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to impose a penalty under section 117 of the Customs Act for using the equipment even after the same was seized by the Central Excise Officers of Cuddalore Central Excise Division in Tamilnadu and it was handed over to the appellant for safe custody. The case was adjudicated by the Commissioner of Customs, Mumbai who vide the impugned order confirmed the duty demand of Rs.73,00,663/- under section 28 of the said Customs Act along with interest thereon under section 28AB ibid. The Commissioner also confiscated the goods under 111(o) of the Customs Act and gave an option to redeem the same on payment of fine of Rs.40 lakhs under the provisions of section 125 of the Customs Act. The Commissioner also imposed a penalty of equivalent amount on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking executed by them at the time of importation, they were required to use the imported goods exclusively for the construction of roads and they would not sell or otherwise dispose of the goods in any manner for a period of 5 years from the date of importation. In the case under consideration, they have used the equipment for the construction of roads though not in the state of UP but in the state of Rajasthan and Tamilnadu as a sub-contractor. Therefore, they have complied with the substantive conditions of the notification and, hence, they are rightly entitled for the benefit of the said exemption. Therefore, he pleads for waiver of pre-deposit of the dues adjudged. 4. The Ld. Commissioner (AR) appearing for the Revenue, on the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of contract is not merely an eligibility condition. Therefore, the argument that the mere award of contract for construction of roads without actual utilization is enough for availing the benefit of exemption will defeat the very purpose and object of the exemption. In the instant case, the importer declared that they had a contract awarded by the State of UP for construction of roads; instead they utilized the equipment for construction of roads elsewhere not as a contractor but as a sub-contractor. But even in those cases, they were not named as a sub-contractor in the contract awarded for construction of roads. As per the conditions stipulated in the exemption notification an importer can claim the benefit of exemption even as a sub-con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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