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TMI Blog2018 (12) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the original authority. The deployment on any road construction project would suffice for continuing entitlement to the exemption, the object of utilisation on the different projects must be examined - the matter is remanded back to the original authority before whom the appellant shall produce details of deployment and that authority shall cause the veracity to be ascertained before rendering a fresh adjudication order - appeal allowed by way of remand. - APPEALS NO: C/369, 370 & 537/2010 - A/88154-88156/2018 - Dated:- 19-12-2018 - Shri S K Mohanty, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri Prasad Paranjape, Advocate for appellant no. 1 and 2, Shri Prakash Patankar, Consultant for appellant no. 3 Ms P Vinita, Assistant Commissioner (AR) for respondent ORDER Per: C J Mathew The issue for resolution in this dispute of M/s Gammon India Ltd, at least from the perspective of Revenue, is the extent to which notification no. 21/2002-Cus dated 1st March 2002 exempting specified goods subject to certain conditions complied with at the threshold should bind the importer thereafter. On the part of the importer-appellant, the dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, in any manner, for a period of 5 years from the date of their importation; and (c) in case of goods of serial no. 12 and 13 of List 18. xxxxxxxx the importer furnished the undertaking and submitted the agreement with National Highway Authority of India for widening and strengthening of 4-lane of existing carriageway of National Highway No. 57 from KM 230-KM 190 (Forbesganj to Sirachi sector), Bihar as demonstration of their eligibility. 4. The facts in the show cause notice issued on 28th August 2009 are not in dispute. Immediately after clearance, the goods were transported to Taloja and thereafter to Delhi where it was commissioned on 23rd August 2000 for deployment in a work contracted with M/s Delhi Metro Rail Corporation. Subsequently, the goods were utilised for various other projects among which was one for the National Highway Authority of India. However, the project for which they had entered into the agreement that was furnished at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in the absence of any evidence, or even allegation, that some act of omission or commission on the part of the individuals was instrumental in the breach leading to confiscation. In support whereof, he places reliance on the decision of the Tribunal in Associated Plastics and Rayons v. Commissioner of Central Excise Customs, Vapi [2007 (210) ELT 524 (Tri-Ahmd)], in Carpenter Classic Exim Pvt Ltd v. Commissioner of Customs, Bangalore [2006 (200) ELT 593 (Tri-Bang)] affirmed by Hon ble Supreme Court, in OP Agarwal v. Commissioner of Customs, Kandla [2005 (185) ELT 387 (Tri-Del)] and in ZU Alvi v. Commissioner of Central Excise, Bhopal [2000 (117) ELT 69 (Tribunal)] all of which lay emphasis on the penal consequences being preceded by a specific finding on the role of the individual in relation to the breach that led to the confiscation of the goods. 8. Learned Authorised Representative contends that, in the light of non-disputation of facts relating to import against declaration of deployment did not occur and utilisation on projects other than that of National Highway Authority of India, the judgement of the Hon ble Supreme Court in Novopan India Ltd v. Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicability of the decision in Commissioner of Customs, Mumbai v. Toyo Engg India Ltd [2006 (201) ELT 513 (SC)] claimed by the noticee was correctly discarded as the facts were substantially different. 9. She also places reliance on the decision of the Tribunal in Patel Engineering Ltd v. Commissioner of Customs (Imports), Mumbai [2013 (295) ELT 243 (Tri-Mumbai)], and affirmed by the Hon ble Supreme Court, which held that 13. As per the condition of the Notification, the undertaking was given by the appellant at the time of import that the impugned paver finisher shall be used only and only for construction of roads for a period of 5 years. From the facts ascertained hereinabove, we find that the paver finisher was not used for the intended purpose as undertaken by the appellant. In view of this finding, the department has rightly issued show-cause notice to the appellant for violation of condition of their undertaking and thereby for denying the exemption under Notification 21/2002. As show-cause notice has been rightly issued and in the adjudication order it is also found that the impugned paver finisher was not used for construction of road, therefore they hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this consideration. The scheme of the exemption, limited as it is to specified goods that, by and large, are deployed in road construction is contingent upon the retention of the goods for a period of five years. It does not take rocket science to conjunctive that it is highly improbable that single project would take five years to complete and, return of the goods to the overseas supplier not being contemplated in the notification, optimum utilisation of the goods by deployment must be construed, in the absence of specific embargo, as not objectionable in principle. There could, and should, be some constraints in the alternative utilisation; this is where we take note of the undertaking, prescribed as pre-condition, in the exemption notification. 11. The exemption itself, from a plain reading, accords the privilege to specified entities that are bound by the obligation enshrined therein. The obligation, of continued possession and of utilisation during the possession, transcends the moment of import to bind for the prescribed time. That, however, is a distinct engagement encapsulated in an enforceable undertaking binding such entities that conform to entitlement at the threshol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputably not among the statutory instruments enumerated in the exemption notification, as well as other bodies has been held to be breach of the undertaking. An averment of an official of the said Corporation has been relied upon to exclude the possibility of deployment in road contracts. It is common knowledge that the Corporation, though established for urban rail networks, does also construct, repair and maintain roads. As for as the other deployments are concerned, the adjudicating authority could not be expected to arrive at a conclusion in the absence of material furnished by the noticee. The appellant, admittedly, did not comply with the timelines insisted upon in the adjudication proceedings. The reasons for such failure were placed on record before the original authority. 15. In the circumstances of our finding that deployment on any road construction project would suffice for continuing entitlement to the exemption, the object of utilisation on the different projects must be examined. To enable that be done, the matter is remanded back to the original authority before whom the appellant shall produce details of deployment and that authority shall cause the veracity to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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