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TMI Blog2019 (3) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... om the structure of the exemption notification is that pre-importation condition entitles the importer to availment of the exemption while the post-importation condition mandates performance; these are mutually exclusive conditions. It is seen from the record that the appellant was prevented from executing the project at Panipat for want of the project site being made available to them. In these circumstances, the pre-importation condition, which is neither included in the undertaking for continuing obligation under the notification nor mandated to be so in the notification, cannot be held to have been deniable after the eligibility was determined at the threshold. Consequently, there is no breach leading to invokability of section 28 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lued at ₹ 2,87,33,620/- and `75,78,038/- respectively in the two bills of entry, were confiscated under section 111(o) of Customs Act, 1962 but permitted to be redeemed on payment of fine of ₹ 90,00,000/- while ordering recovery of ₹ 1,35,08,850/- that was foregone at the time of import under section 28(1) of Customs Act, 1962, read with section 125(2) of Customs Act, 1962, and imposing penalty of like amount under section 112 of Customs Act, 1962 on the importer. Penalties of ₹ 5,00,000/- were imposed on Shri RP Singh, Deputy General Manager and ₹ 1,00,000/- each on M/s Batliboi Impex Ltd and National Highway Authority of India. We dispose off all these appeals of M/s Ircon International Ltd, M/s Batliboi Impe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot one of those awarded by Ministry of Surface Transport, National High Authority of India, Public Works Department or Road Construction Corporation in the State of Bihar which alone would entitle the importer for the benefit of the exemption. Reliance is placed on the decision of the Tribunal in Patel Engineering Ltd v. Commissioner of Customs (Import), Mumbai [2013 9295) ELT 243 (Tri.Mumbai)], which was upheld by the Hon ble Supreme Court by dismissing the appeal of M/s Patel Engineering Ltd wherein it was held that construction of roads is a necessary condition for eligibility to the exemption. Placing reliance on the decision of the Tribunal in Shreeji Construction v. Commissioner of Customs (Import), Mumbai [2014 (313) ELT 566 (Tri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enshrined therein as assurance that the privilege of exemption is subject to utilization in road development project undertaken by the State or specified instrument of the State and retention with the importer for five years. Such projects are awarded in portion to contractors and it is not anybody s case that the equipment will find full employment during the execution of the project in entirety. The idling of such resources is as much of a waste as a national loss. It is in acknowledgement of that reality and compulsion that the condition of use in road projects, other than that which conferred eligibility for the privilege on the importer, was also enshrined. This, then, constitutes, along with retention, post-importation conditions tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been deniable after the eligibility was determined at the threshold. Consequently, there is no breach leading to invokability of section 28 of the Customs Act, 1962 and/or section 111 of the Customs Act, 1962. 7. As far as the utilization of the imported equipment is concerned, it is not in dispute that the equipment was deployed on contracts for construction of rail over bridges. The post-importation deployment does not necessarily have to relate to contracts that confer eligibility at the threshold. Hence, execution of project contracted by Indian Railways, or any agency of the Government of Bihar, is not violative of the continuing obligation undertaken by appellants or mandated by the notification except where the project did ..... X X X X Extracts X X X X X X X X Extracts X X X X
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