2016 (12) TMI 762 - AT - Customs

Denial of benefit of Notification No.21/2002-Cus. dt. 1.3.2002 - contractor of nuclear project - goods meant for project used therein - Held that - The notification is concerned with the goods required for setting up of nuclear project having a capacity of 440 MW or more as certified by an officer not below the rank of a Joint Secretary to the Government of India in the Department of Atomic Energy. Requirement of law is that described goods as specified in List 43 in the notification should be imported for the purpose of setting up of nuclear projects. Such fact is not in dispute. The second condition is that projects should be of 440 MW. That is also not disputed. The last condition is that the requirement of the goods as well as the capacity is to be certified by a specified officer of Govt. of India which is also not disputed. Appellant says that the goods imported was within the knowledge of the nuclear project authority. They were the essential party to the import since their name appears in the Bills of Entry also. He demonstrates that the goods were imported on account of the nuclear project. The sum and substance of the requirement of the notification is that the goods is subjected to exemption but not the person who imported. Therefore, without any doubt as to the import of the goods and use thereof in the Nuclear Project as per certificate issued by the Notified Authority not disputed by Revenue, there cannot be denial of benefit of the notification to the appellant - appeal allowed. So far as the project import benefit is concerned, in view of grant of benefit under the notification, that ipsofacto allows such benefit. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Denial of benefit of Notification No.21/2002-Cus. dt. 1.3.2002 for goods used in a Nuclear Power Project.

Analysis:
The appellant contended that as a contractor of the nuclear project, the goods used for the project should not be denied the benefit of the notification. They relied on a previous order of the Tribunal in support of their submission. On the contrary, the Revenue supported the decisions of the lower authorities. The show cause notice alleged that the exemption under Condition No.87 of the notification applied only if the goods of Chapter Heading 98.01 were imported by specific entities. However, it did not mention that goods imported by other contractors for project use would not receive the benefit of the notification.

The notification in question pertains to goods required for setting up a nuclear project with a capacity of 440 MW or more, certified by a designated officer in the Department of Atomic Energy. The law mandates that the goods specified in List 43 must be imported for the nuclear project's establishment, a fact undisputed in this case. The appellant argued that the goods were imported with the knowledge of the nuclear project authority, as evidenced by their involvement in the import process. The essential aspect is the goods' eligibility for exemption, not the importer. As the use of goods in the nuclear project was certified by the designated authority and undisputed by Revenue, the appellant should not be denied the notification's benefit, leading to the allowance of the appeal.

In conclusion, the appeals were allowed, emphasizing that the benefit of the notification should extend to the appellant based on the import and use of goods in the Nuclear Power Project as certified by the designated authority, irrespective of the importer.