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TMI Blog2015 (2) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated on the ground that the applicants had not fulfilled the condition No. 40 of Notification No. 21/2002-Cus. 5. The applicant is a Public Sector Undertaking of the Government of India. The applicants made import of goods which are specified in List 18 of the Notification for construction of roads. As per Condition No. 40 of the Notification the benefit of the Notification is available to a person who has been awarded a contract for construction of roads in India by or on behalf of the Ministry of Surface Transport, by the National Highway Authority of India. The condition further provides that the importer at the time of importation furnishes an undertaking that he shall use the imported goods exclusively for the construction of roa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently with the intervention of the Honble Supreme Court the machines were released. The contention of the applicants is that there is no allegation that the machines were used other than the Project awarded by the National Highway Authority of India or the importer had parted with the machines. In respect of the cancellation of the contract, the matter was under arbitration and ultimately arbitration award has been announced. The contention is that as the applicants had not violated any conditions of the Notification, therefore the demand of Customs duty is not sustainable. In respect of appeal No. C/86834/13 the applicant also submitted that regarding the eligibility of machines under serial No. 18 of the Notification, the matter i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) a person who has been named as a sub-contractor in the contract referred to in the contract referred to in (ii) above for the construction of roads in India by or on behalf of the Ministry of Surface Transport, by the National Highway Authority of India, by Public Works Department of a State Government or by a road construction corporation under the control of the Government of a State or Union Territory; (b) the importer, at the time of importation, furnished an undertaking to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, to the effect that he shall use the imported goods exclusively for the construction of roads and that he shall not sell or otherwise dispose of the said goods, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o seized by the Authority and subsequently released. There is no evidence on record to show that the applicants disposed of the machines and not used for the specified purpose. In Appeal E/86834/13 the eligibility of the machine i.e. Electronic Road Paver Finisher. the issue is before the Larger Bench of the Tribunal. In these circumstances, we find that the applicants have made out a case for total waiver of the dues. The pre-deposit of the dues are waived for hearing the appeals. 13. As noted above, the Commissioner (Appeals) has not decided the appeals on merits. Therefore, the impugned orders are set aside and the matter remanded to the Commissioner (Appeals) for fresh decision without insisting for any pre-deposit and after hearing an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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