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TMI Blog2015 (9) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 - Shri R. Periasami, Technical Member and Shri P.K. Choudhary, Judicial Member, JJ. For the Petitioner : Shri A.K.Jayaraj, Advocate For the Respondent : Ms. Indira Sisupal, AC (AR) ORDER Per R. Periasami 1. Appellant filed appeal against the impugned order dt.25.7.2003 passed by Commissioner of Customs (Appeals), Chennai. 2. The brief facts of the case are that appellant filed warehouse Bill of Entry for import of Asphalt Mixing Plant Model Speco TSAP-1550FFW and subsequently filed Exbond Bill of Entry B/E No.12732 dt.12.7.2000 and claimed the benefit of Exemption at Sl.No.230 of Notification No.21/2002-Cus. dt.1.3.2002. The Adjudicating authority in his order dt.6.8.2002 denied the exemption and assessed the Bill of Entry on merit and confirmed the demand. On appeal, Commissioner (Appeals) upheld the order. Hence the present appeal. 3. Heard Both sides. Ld. Advocate appearing on behalf of the appellants submitted that they are eligible for the exemption notification No.21/02-Cus. for import of said machines which are used in construction of national highway. He explained the Sl.No.230 of Notification covers goods falling unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.5 (NH-5) in Andhra Pradesh and (b) the existing 2-Lane Highway from Km 217 to Km 252 on the Nandigama Ibrahimpatnam Section of the NH-9 in A.P. He relied clauses (A), (B) (C) of EPC contract and submits that STPL by virtue of the rights assigned as per the concession agreement, STPL(SPV) is the Concessionaire and awarded contract to the appellant on 30.7.2001 and relied relevant clauses at page 176 of Paper Book. 3.4 He submits that NHAI issued a letter dt.18.2.2002 addressed to Deputy Commissioner of Customs and specifically recommended for exemption on the import of Asphalt Mixing Plant model Speco TSAP -1550FFW including accessories for the above work as per Govt of India, Ministry of Finance Notification No.16/2000 dt.1.3.2000. Therefore, the appellants have rightly claimed the benefit of exemption notification under Sl.No.230 of Notification No.21/2002-Cus. 3.5 He further submitted that on identical import pertaining to another importer viz. M/s. Punj Lloyd Ltd., New Delhi during the same period the exemption benefit under Sl.No.230 of notification was denied vide OIO dt.16.7.2002. On appeal, Commissioner (Appeals) had allowed the benefit of Exemption Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as a person who has been awarded the contract by NHAI and they are the only the contractor or sub-contractor appointed by STPL(SPV/Concessionaire). Appellants contended that they are contractors of STPL created as Special Purpose Vehicle (SPV) as per the Concession Agreement entered between NHAI and CIDBI. On perusal of various agreements relied upon by appellant, we find that there is no dispute on the fact that Govt of India through NHAI entered into an Concession Agreement with Govt of Malaysia through CIDBI Inventures SDN BHD (Malaysia) for widening and strengthening National Highway-NH5 and NH9 between sections of Tada-Nellore Section and Nandigama Ibrahimpatnam Section (Vizag Section) in the State of Andhra Pradesh and its operation and maintenance on Build-Operator-Transfer(BOT) basis. For the sake of easy understanding, the relevant para 3 and 3.1 of the OIO is reproduced below :- 3. The letter No.15021/2001/Tech/GM(E)/90 dated 18.2.2002, issued by NHAI stated that the importer M/s.Bumi Hiway (India) Pvt. Ltd. are required to import necessary machineries and construction equipment for execution of the contract for Tada-Nellore-BOT PROJECT. Currently, they intend to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SPV and the said agreement forms part of the main (MOA) Concession Agreement dt.27.3.2001. By virtue of this assignment agreement, STPL (SPV) becomes part of the MOA and acquires the right, duties and liabilities of the Concession Agreement between NHAI and CIDBI. As per clause 2.5 of the assignment agreement, STPL can further assign the concession in favour of its lenders and/or any other party, selected in consultation with NHAI and in accordance with the provisions of the Concession Agreement. Therefore, it is evident that STPL entered into EPC contract with the appellant for execution of the project. On a perusal of EPC Contract dt.20.9.2001, entered by the appellant the clause (B) (C) clearly stipulates the nature and scope of the work and the terms of the contract. Clause (B) stipulates that SPV shall perform the Concession Agreement as if it was entered between NHAI and the Employer (SPV) and the Employer shall be deemed to the Concessionaire under the Concession Agreement. Therefore, by virtue of this clause the STPL is the Concessionaire. 7. In this regard, we find that NHAI in their letter dt.18.2.2002 has clearly brought out various clauses of the agreement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20-11-2001 agreement means this agreement including schedule hereto as of the date hereof and includes any amendment hereto needed in accordance with the provisions hereof. The agreement was amended by concession agreement dated 14-3-2002 as follows:- EPC contract means the sub-contract for the purpose of design, engineering, procurement of equipment, materials and construction of the project in accordance with the provisions of this agreement entered into by the concessionaire with M/s. PLL. The amendment has been signed by the General Manager, NHAI and the Director, both parties to the original concession agreement. Therefore, the Commissioner (Appeals) has rightly held that in terms of Article 19.7 of the concession agreement, the amended agreement dated 14-3-2002 is valid and effective. In other words M/s. PLL is specified in the agreement between NHAI and NKEL as the person named as sub-contractor for implementing the project. In this view of the matter, there is no legal infirmity in the order passed by the Commissioner(Appeals). 3. The appeal is therefore dismissed. 9. In view of forgoing discussions and by following this Tribunals decision (supra), we hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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