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TMI Blog2016 (11) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... asting time of importer as well as Revenue. In these circumstances, chapter heading 98.01 has been introduced where the entire plant is classified under a single heading and charged to a single rate of duty. In the instant case, the appellant has clearly imported the goods for bona fide use and manufacture of the intended final product. They have installed machinery in their plant and put the equipment to use for more than two years. It is only when the plant became unviable and was lying idle for more than 18 months that the appellant disposed of the plant. We find that in the absence of any restriction of such sale, the benefit of assessment under chapter heading 98.01 cannot be denied - appeal allowed. - Appeal No. C/239/05-Mum - A/9323 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt/installation and disposal of subject plant vide their letter dated 28.11.2003. A notice was issued to the appellant alleging that the appellant could not have diverted the goods to local market violating the provisions of Project Import Regulations, 1986. It was held that since the appellant had violated the conditions of the Project Import Regulations, they are not entitled to finalization of assessment under heading 98.01 and at effective rate of duty prescribed under Notification 132/85. The goods were classified under heading 8479.89 and a demand was issued for basic customs duty @ 80%, auxiliary duty at the rate of 50% and CVD of 10% and special excise duty of 15%. The demand was confirmed by the Deputy Commissioner of Customs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied on the decision of the Tribunal in the case of Bharat Bijlee Ltd. vs. CC, Mumbai 2014 (314) ELT 74, to assert that the goods imported under Project Import Regulations cannot be diverted. The learned AR also relied upon the decision of the Hon ble Apex Court in the case of CC, Mumbai vs. Toyo Engineering India Ltd. 2006 (201) ELT 513 (SC). 4. We have gone through the rival submissions. We find that the Revenue has failed to establish any provision under Notification 132/85 or the Project Import Regulations or under Chapter heading 98.01 that prohibited sale of goods imported under chapter heading 98.01. The chapter heading 98.01 is a facility extended and not a concession granted. When a complete plant is imported, it may consist of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 201) ELT 513 (SC). In the said case, the apex court has observed as follows:- 12. It is not disputed that construction equipments imported by the respondent were used in the initial setting up of the plant. The Assistant Collector and the appellate authority denied the facility of the project import as the ownership of the imported goods would not pass to the project authority and that the machinery imported could be utilized elsewhere in the setting up of any other plant. What is required under Heading 98.01 Tariff Act is that the machinery imported should be required for the initial setting up of a unit, or the substantial expansion of an existing unit . This heading specifically mentions and includes auxiliary equipment . The auxili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r purposes of the assessee. That the vehicles, which are used in the shifting of the transformers, would not constitute integral activity of the project. In the present case goods imported by the respondent are hydle truck cranes, excavator, shovel loader, truck, forklift truck, power generators, diesel welder, welding rectifier, containers tools and tackles instruments, level Nako with tripod, theodtite nako with accessories and tripod besides window air-conditioners, electric typewriter and camera with flash (the total cost of last three items is only ₹ 70,000/-, which is negligible). In fact, it was not disputed before the Tribunal or before us as well that the construction equipments imported by the respondent were used in the ini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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