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TMI Blog2019 (11) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... uents of the consortium. Appeal dismissed - decided against appellant. - Customs Appeal No. 86101 of 2013 - FINAL ORDER NO. A/86983/2019 - Dated:- 1-11-2019 - Mr. S.K. Mohanty, Member (Judicial) and Mr. Sanjiv Srivastava, Member (Technical) Shri Nand Kishore, Advocate, for the Appellant Shri Bhushan Kamble, Assistant Commissioner, Authorised Representative for the Respondent ORDER This appeal is directed against order n appeal No 944/MCH/ADC/VIIB/ 2012 dated 27.11.2012 of the Commissioner Customs (Appeal)Mumbai Zone I. By the impugned order Commissioner has upheld the assessment order of the Bill of Entry No 9566214 dated 06.07.2010. 2.1 Appellants have filed Bill Of Entry No 956214 dated 06.07.2010 for the clearance of goods described by them as Electronic Sensor Paver Vogel Model 1800-2 with AB 600-2-TV for laying bituminous pavement upto 9 meters along with multiplex big SKJ and its accessories , and declared value was Euro 3,60,000/- (₹ 2,11,25,160/-). They claimed classification under CTH 84306100 and benefit of exemption under notification No 621/2002-Cus dated 01.03.2002 as amended ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orized representative submitted that- The finding of the assessing authority and the appellate authority to the effect that the name of appellant do not figure in the main contract, is not in dispute. The issue in respect of the same exemption notification and the condition, has been settled by the Apex Court in case of Gammon India Ltd [2011 (269) ELT 289 (SC)]; The clarification referred to by the advocate, has been issued by JS (TRU) in respect of subsequent notification and not in respect of the same notification. The decision of the tribunal in appellants own case relying on the clarification issued subsequently cannot be said to be good law, for the reason that Apex Court has in case of Ratan Melting Wires Industries [2008 (231) ELT 22 (SC)] has clearly held to the contrary. In view of the decisions of the Hon ble Apex Court in case of Gammon India Ltd, the appeal filed needs to be dismissed. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments- 4.2 The issue in the present case is squarely covered by the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the employer and Gammon- Atlanta JV as contractor was signed by the representatives of both the companies viz. Gammon and Atlanta, meaning thereby that so far as NHAI was concerned, for them the contractor was Gammon-Atlanta JV and not Gammon or Atlanta individually. 15 . According to the adjudicating authority, it was clear from both of the said agreements that the contract of construction of roads in India was awarded to the joint venture and, therefore, Gammon was not entitled to avail of the benefit of the Exemption Notification as an independent entity. On the contrary, the Commissioner (Appeals) allowed the benefit of the Exemption Notification to the appellant on the ground that the Exemption Notification should be given a liberal interpretation and that the revenue should not try to take advantage of ignorance of law and procedure on the part of Gammon. It is the Tribunal which has dealt with the issue in detail by taking into consideration certain factual aspects pertaining to the import of machine like placement of the supply orders by Gammon and not by the joint venture and its payment by Gammon from its own account and not from the joint vent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the Indian group of companies and Singapore based company which had jointly undertaken the commercial venture by contributing assets and sharing risks. Applying the principle of lifting the corporate veil , it was held that the joint venture companies technical experience could only be the experience of the partnering companies and the technical experience of all constituents of NHL was liable to be cumulatively reckoned in the tender proceedings and any one of the constituents was competent to act on behalf of the joint venture company. Highlighting the concept of joint venture, the Court observed thus : 24. The expression joint venture is more frequently used in the United States. It connotes a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise wherein all contribute assets and share risks. It requires a community of interest in the performance of the subject-matter, a right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement, to share both in pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority or before the Appellate Authority or before us, nor is it suggested by the documents viz. the supply order or the bill of entry, that the import of the machine was by or on behalf of the joint venture. On the contrary, the Tribunal has recorded in its order that when questioned, learned counsel for the appellant clarified that correspondence with the supplier of goods and placement of order had been done by Gammon and not by the joint venture or on their behalf. He also admitted that payment for the machine had not been made from the joint venture account, which had been provided for the contract but from the funds of Gammon. 21 . Thus, the inevitable conclusion is that import of Concrete batching plant 56 cum/hr by Gammon cannot be considered as an import by M/s. Gammon-Atlanta JV, a person who had been awarded contract for construction of the roads in India and therefore, neither Gammon Atlanta JV nor Gammon fulfill the requisite requirement stipulated in Condition No. 38 of the Exemption Notification No. 17/2001-Cus., dated 1st March, 2001. 22 . As regards the plea of the appellant that the Exemption Notification should r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 4.4 In view of the decisions as above we are of the view that issue is squarely covered against the appellants. However appellants do not dispute the same but have relied upon subsequent clarification issued by the Joint Secretary (TRU) clarifying that benefit of similar exemption notification would be admissible to the constituents of the consortium. It is their case that on the basis of the said clarification tribunal has vide order dated 03.05.2019 extended the benefit of exemption notification to them stating as follows: The first order of the Tribunal in re Gammon India Ltd that was ultimately decided by the Hon'ble Supreme Court, and the subsequent decision of the Tribunal re Gammon India Ltd, refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot lodge an appeal taking the ground which is contrary to the circular. 6 . Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law. 7 . As noted in the order of reference the correct position vis-a-vis the observations in para 11 of Dhiren Chemical s case (supra) has been stated in Kalyani s case (supra). If the submissions of learned counsel for the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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