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TMI Blog2019 (5) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... e vehicle which takes the bid process to its logical conclusion by entering into an agreement with the awarding agency. Restricting the eligibility to the subsequently created artificial person, emerging from the contractual compulsion to fulfil a structuring requirement, would incapacitate the execution of the work and the original intent of the extent of the notification was thus amplified, and articulated, in the referred clarification. The denial of exemption notification does not have the authority of law - appeal allowed - decided in favor of appellant. - Appeal No. C/98/2012 - A/85813/2019 - Dated:- 3-5-2019 - Mr C J Mathew, Member (Technical) And Ajay Sharma, Member (Judicial) Shri Nandkishor Kothari, Advocate with Ms. Aasiya Khan, Advocate for the appellant Ms P.V. Sekhar, Addl. Comm. (AR) for the respondent ORDER Per: C J Mathew This appeal pertains to import of speco hot mix plant 200 TPH 2500 FFW against bill of entry no. 678686/08.06.2010 claiming the benefit of exemption in notification no. 21/2002-Cus dated 1st March 2002. There is no dispute that the goods are c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortation, furnishes an undertaking to the Deputy Commissioner of Customs or 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 five years from the date of their importation; and (c) in case of goods of serial no. 12 and 13 of List 18, the importer, at the time of importation of such goods, also produces to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, a certificate from an officer not below the rank of a Deputy Secretary to the Government of India in the Ministry of Surface Transport (Roads Wing), or an officer not below the rank of Chief Engineer of the National Highways Authority of India, to the effect that the imported goods are required for construction of roads in India. itself may be worth recalling. 3. Learned Counsel for the appellant submits that the concession agreement for design, construction, development, finance, operation and maintenance of four/six laning of 181.981 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free can be sold within 5 years of importation subject to payment of customs duty on depreciated value subject to the conditions specified therein and that individual constituents of the consortium whose names appear in the contract can be import goods under the said notification. He also asserts that this liberalised view of ascertainment of eligibility for the benefit of exemption notification has been appropriated by the Central Board of Excise and Customs in its website for enumeration among the various steps taken by that authority to promote ease of doing business. It is seen that the reference in the website cites the authority of the letter referred supra. Reliance is placed by Learned Counsel on the decision of the Hon'ble Supreme Court in Commissioner of C.Ex., New Delhi v. Hari Chand Shri Gopal [2010 (260) ELT 3 (SC)] and in Commissioner of Customs (Prev), Mumbai v. M Ambalal Co. [2010 (260) ELT 487 (SC)] to urge a strict interpretation of law in relation to tax matters. 5. Learned Authorised Representative maintains that a series of judicial decisions have espoused strict application of eligibility for this particular exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requirement stipulated in Condition No. 38 of the Exemption Notification No. 17/2001-Cus., dated 1st March, 2001. to discard the claim for entitlement and, relying on this decision, the Tribunal, in re Gammon India Ltd, had refused the benefit of notification by holding that 6. The next issue for consideration is whether the appellant is eligible to claim the duty exemption in terms of sub-clause (iii) of Clause (a) of Condition 40. The contract in this case was awarded by NHAI to the consortium M/s. GICL which comprises the appellant, M/s. Gammon India Ltd. as its lead member with two other members. The appellant s name is not mentioned as a sub-contractor in the concession agreement dated 6th October, 2006 entered into between NHAI and M/s. GICL. xxx We have perused the said agreement and its Schedules. Nowhere in the agreement or the Schedules thereto, the appellant M/s. Gammon India Ltd. is named as a sub-contractor. We have also perused the Request For Proposal (RFP) dated 20-12-2005. In respect of proposals submitted by a Consortium, in clause 1.4.2, there is an additional requirement which reads as under : 1.4.2 Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be between the main Contractor who is M/s. GICL on the one hand and the appellant, M/s. GIL, on the other spelling out the terms and considerations for the contract and such sub-contractor has to be named specifically in the concession agreement between NHAI and M/s. GICL. That is not the position obtaining in the present case. As per the terms of the notification a person has been named as sub-contractor in the contract referred in (ii) above, that is in the contract between NHAI and M/s. GICL in the instant case. The word named signifies to make reference to or speak about briefly but specifically (ref. Webster s online dictionary). In other words, the appellant should be specifically named or designated as a sub-contractor explicitly. We do not find any such specification of the appellant as a sub-contractor in the instant case. Accordingly we hold that the appellant has not satisfied Condition No. 40(a)(iii) stipulated in the notification. Consequently, the appellant is not eligible for the benefit of duty exemption under the said notification. 6.3 In law, sub-contractor is a person who is awarded a portion of an existing contract by a principal or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ationship of two or more of bid-partners as a joint venture. The procedure following the award in the impugned project required establishment of a special purpose vehicle and it is that special purpose vehicle which takes the bid process to its logical conclusion by entering into an agreement with the awarding agency. Restricting the eligibility to the subsequently created artificial person, emerging from the contractual compulsion to fulfil a structuring requirement, would incapacitate the execution of the work and the original intent of the extent of the notification was thus amplified, and articulated, in the referred clarification. The adjudicating authority who authored impugned order did not have the benefit of this clarification. The earlier decisions were rendered in the absence of such declaration of intent and the intent, having been declared subsequently despite contrary judicial decision, would have to be acknowledged in the implementation; disregard of that intent, as declared, would be tantamount to foray into policy formulation. 8. In view of the above, we find that the denial of exemption notification does not have the authority of law and, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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