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TMI Blog2015 (8) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of machinery being called as Electronic Paver Finisher for laying bituminous pavement 7m size and above, and this aspect has not been originally considered by Tribunal – Petitioner also submitted that without being influenced by any of findings of Tribunal, Commissioner of Appeals may be directed to consider issue independently and decide issue on merits – In order to give quietus to issue, appellate authority directed to dispose of appeal of petitioner, on its own merits and in accordance with law – Petition disposed of. - W. P. No. 11109 of 2015 & M. P. No. 1of 2015 - - - Dated:- 4-8-2015 - The Honourable Mr. Justice R. Mahadevan, JJ. For the Petitioner : Mr. B. Satish Sundar For the Respondents : Mr. K. Mohanamurali, SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent found that the imported machinery is of standard width of Screed , attached to the imported paver finisher of only 6m. The width larger beyond 6m is created only through addition of bolt on extension manually up to a maximum of 9m. The third respondent followed the decision of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai in the case of Gammon India Ltd. Vs. Commissioner of Customs, reported in 2013 (289) ELT 740 (Tri-Mumbai), to arrive at his conclusion and held that even though the import documents like invoice, etc., mentioned in the description of the goods as Electronic Sensor Paver--Vogele Model Super--1800-3 AB 600 T.V. Screed for laying bituminous pavement up to 9m, along with required a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the benefit of the Customs Notification No.12/2012-Cus, dated 17.03.2012 in Sl.No.368-A or not. The third respondent-Assistant Commissioner was mainly guided by the ratio of the Tribunal in the case of Gammon India, as stated above. 5. There is a contra view in the case of Ramky Infrastructure Ltd., pertaining to the ratio of the Tribunal in Gammon India Ltd. Since there was conflicting decisions of the Tribunal, a Larger Bench was constituted, which upheld the view taken in Gammon India case. Thus, there are conflict of views as to whether the benefits of exemption could be granted to the petitioner or not. Whether the Notification is size-specific with respect to the equipment or whether the machine has the capacity to lay the paveme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard the interest of the Revenue. 7. The goods under import are neither prohibited, nor restricted, and they are freely importable and the project in question is a public project. The issue before the second respondent-appellate authority is as to whether the petitioner is entitled to the benefit of the exemption Notification or not. Since there are two views in respect of the interpretation of the earlier Notification by the Tribunal in its West Zonal Bench in Mumbai, the petitioner apprehends that the second respondent may kow-tow the reasoning of the Larger Bench of the Tribunal and the same is imminent. Hence, the petitioner-Company has filed this Writ Petition seeking for a direction to the second respondent-appellate authority to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s argument for urgent need of goods for the project in question, is not sustainable. There is no stay of the operation of the order passed by the lower authority and the process of appeal is in the final stage; the petitioner is attempting to subterfuge the due process of law, more particularly, quasi-judicial process. Though Section 130 of the Customs Act as it stood before amendment, provides for appeal to this Court against the order of the CESTAT, the present Writ Petition is filed only for issuance of a Writ of Mandamus, and any direction by this Court to the second respondent-Commissioner of Appeals to ignore the ratio of the order of the CESTAT in identical matters as prayed for by the petitioner, may go against the essence of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inous pavement 7m size and above, and this aspect has not been originally considered by the Tribunal, or not even subsequently by the Full Bench of the Tribunal and SLP is pending before the Supreme Court. It is the further case of the petitioner that against such denial of the relief by the original authority, the petitioner has already filed appeal before the second respondent-Commissioner of Appeals, under Section 128 of the Customs Act, which is pending. 12. Hence, without being influenced by any of the findings of the Tribunal at the first instance as well as the Full Bench of the Tribunal, the petitioner prays that the second respondent-appellate authority (Commissioner of Appeals) may be directed to consider the said pending appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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