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TMI Blog2019 (4) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... S.K. Mohanty, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri Roopam Kapoor, Commissioner (AR), for appellant Shri Prashant Patankar, Consultant, for respondent ORDER Per: Sanjiv Srivastava This appeal filed by the revenue is directed against the Order in Appeal No 382/MCH/DC/Gr.V.A/2012 dated 11.07.2012 of Commissioner Customs (Appeal) Ballard Estate, Mumbai. By the said order Commissioner 9Appeal) has upheld the order in original no 873/DC/Gr VA/AKS/2010-11 dated 24.05.2010 of the deputy Commissioner Customs (Import) Appraising Group VA, NCH Mumbai I holding as follows: I hold that the importer is not entitled for the benefit of the Notification No 21/2002-Cus dated 01.03.2002. 2.1 Appellant filed a Bill of Entry No 947167 dated 07.0.2010 for clearance of 4 Nos of Item declared as electronic Sensor Paver Vogele-Model Super 1800-2 with AB 600 2TV Screed for working upto 9.5 Mtrs for laying Bituminous Pavement and declared assessable value of ₹ 4,62,86,280/-. The y claimed exemption under Notification No 21/2002-Cus dated 01.03.2002. 2.2 On query regarding paving width of the machinery, Appellants responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In their support they relied upon the decisions as follows: a. Gammon India [2011 (269) ELT 289 (SC)]; b. Mihir Textiles [1997 (92) ELT 9 (SC)]; c. Hari Chand Shri Gopal [2010 (260) ELT 3 (SC)]; d. Hemraj Govardhandas [1978 (2) ELT 1350 (SC)]. 3.2 In the cross objections filed respondents have stated that i. Respondent was approved as sub contractor both by NHAI as well as the contractor. Approval as sub contractor was given by NHAI as per letter dated 24.02.2010 which is in nature of supplement to the concession agreement, and is t part and parcel of Concession agreement. ii. Imported paver finisher is covered under Entry No 2 of List 18. iii. Order of the predecessor is not binding on subsequent Commissioner (Appeal), hence order of Commissioner (Appeal) do not violate judicial discipline. iii. Imported goods need to be assessed as presented for assessment. Imported Paver finisher was for laying bituminous pavement of width 7 mts upto to 9 mts. Iv. Exemption Notification should be interpreted in the manner it is without addition or deletion of any words to it. v Interpretation should not make the entry itself redundant. 4.1 We have heard Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract referred to in (ii) above for the construction of roads in India by or on behalf of the Ministry of Surface Transport, by the National Highway Authority of India, by Public Works Department of a State Government or by a road construction corporation under the control of the Government of a State or Union Territory; (b) . (c) .. 5.4 A five member bench of Hon ble Apex Court in case of Dilip Kumar Company [2018 (361) ELT 577 (SC)] has held as follows: 52. To sum up, we answer the reference holding as under - (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) The ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export case (supra) stands overruled. 5.3 Para 6 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the machine in question is complete in itself without the accessories. 9. A Notification is to be interpreted strictly as held by the Hon ble Supreme Court in the case of Novopan India Ltd. (supra). The Hon ble Supreme Court held as under :- 18. We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicals - and in Union of India v. Wood Papers referred to therein - represents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee - assuming that the said principle is good and sound - does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows :- a. Construction Works: GIL shall be responsible for the execution of construction works to the Project. b. Operations Maintenance Works : GIL and/or GIPL shall be responsible for the operations and maintenance works for the Project. As per clause 10 of the said MOU - That the Parties shall be jointly and severally liable for execution of the Project in accordance with the terms of the Concession Agreement . 6.2 The argument of the appellant is that this MOU which is part of RFP should be considered as a subcontract and the appellant, M/s. GIL should be deemed as a sub-contractor. This argument is totally illogical and unacceptable for the following reason. Firstly the MOU was reached among the members of the consortium for forming a Special Purpose Vehicle with shareholding commitments expressly stated. Secondly the MOU was reached with respect to each member s rights and obligations towards each other and their working relationship. By no stretch of imagination, this MOU can be considered as a sub-contract. A sub-contract has to be between the main Contractor who is M/s. GICL on the one hand and the appellant, M/s. GIL, on the other spellin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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