9911796707
TMI Blog2003 (4) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... order dtd. 4-6-1997 was issued directing the Commissioner to file an appeal to this Tribunal. The present appeal has been filed in pursuance of the same order-in-review by Shri M.G. Venugopalan, Commissioner of Customs, Mumbai. 2. Shri V. Sridharan, learned Advocate, for the respondents takes a preliminary objection that under Section 129D of the Customs Act, 1962, the Board requires to direct the same Commissioner who has passed the order-in-original to file an appeal to the Tribunal whereas in this case Shri S.S. Sekhon, Commissioner had passed the order-in-original whereas Shri M.G. Venugopalan, Commissioner has filed the appeal before the Tribunal which is not maintainable. 3. Shri Sridharan raised another preliminary objection that the order-in-review passed by the Board has not challenged the finding of the Commissioner with regard to the limitation and, therefore, the appeal is infructuous in any case. 4. Shri S.S. Bhagat, learned S.D.R. appearing for the Department states that Shri M.G. Venugopalan, Commissioner of Customs was the successor in office to Shri S.S. Sekhon, who had passed the impugned order-in-original and therefore, he is competent to prefer this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that there is no dispute regarding facts of the case, the main dispute centers around the legal issue as to whether machinery imported under concessional rate of duty under project import scheme can be installed in a different unit located at a different place than the unit for which the project import benefit is applied for and taken. To be able to decide this question, we need to look at the project import scheme in some detail. 8. Machinery items required for either initial setting up of a new project or for undertaking substantial expansion of an existing project would normally be classifiable under different headings and sub-headings of the Customs Tariff. Machinery for a project would be usually purchased under a single contract for a single value. Classification of each machinery under a heading or sub-heading appropriate to it would entail separate valuation of the same for the purpose of assessment. To avoid numerous assessments requiring splitting of value for all the machineries brought under a single project contract and to provide for single assessment at a lower duty, project imports have been brought under a separate tariff heading. At the same time, to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) "substantial expansion" means an expansion which will increase the existing installed capacity by not less than 25 per cent; (2) "unit" means any self-contained portion of an industrial plant or any self-contained portion of a project specified under the said Heading No. 98.01 and having an independent function in the execution of the said project. Regulation 4 states that assessment under Heading 98.01 shall be available only to those goods which are imported against specific contract registered with the Customs House in the manner specified in Regulation 5. Regulation 5 requires an application to be filed specifying the following :- (a) the location of the plant or project; (b) the description of the articles to be manufactured, produced, mined or explored; (c) the installed or designed capacity of the plant or project and in the case of substantial expansion of an existing plant or project the installed capacity and the proposed addition thereto; (d) such other particulars as may be considered necessary by the proper officer for purposes of assessment under the said heading. 12. It is the case of the Department, as argued by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 98.01 does refer to an unit and Chapter Note 2 makes it clear that Heading 98.02 will apply to goods which are imported in accordance with the regulations. The regulations define the unit and also require the application to specify the location of a project. Therefore, the inescapable, conclusion is that the project import benefit under Heading 98.02 is specific to a unit at the specified location. The decision of the Apex court in the case of Jacsons Thevara v. Collector - 1992 (61) E.L.T. 343 (S.C.) has been referred to in the impugned order and was also referred to by both sides during arguments. The said decision relates to benefit of reduced rate of duty under Heading 84.66 of the earlier BTN based Customs Tariff which was the precursor of the present Heading 98.02 of the HSN based tariff and as such, the same is very relevant, for deciding the issue before us. It is seen that in the said case, the Apex Court did not approve of transfer of the imported goods to another company for setting up a new unit instead of using in the existing unit contrary to declaration. The Apex Court also held that extended period of limitation was invocable under proviso to Section 28(1) in suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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