TMI Blog2022 (3) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... to be used in breach of the condition of exemption is built upon their determination of the permitted activity as cutting of paths to be levelled and hardened before being layered with macadam just enough provide a ride smoother than on the cobblestoned highways of ancient Rome with no immediate requirement of microsurfacing until a few years down the line. In GAMMON INDIA LTD, CHARAN SINGH, UMAKANT TIWARI VERSUS COMMISSIONER OF CUSTOMS (IMPORT) MUMBAI [ 2018 (12) TMI 1122 - CESTAT MUMBAI ], the Tribunal makes it abundantly clear that any violation of the post-importation conditions is to be responded to by enforcement of the undertakings furnished at the time of import and not by pre-emptive burdening of some part of the construction of roads project by executive overreach. The eligibility of the project itself or the status of the appellant, as contractor eligible to import specified goods for the project, is not in dispute; it is the use that the impugned equipment has for the project that is with the original authority restricting the proceedings to the eligibility of the impugned goods at the threshold. Without examining the nature of the project itself, a finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority - appeal dismissed. - CUSTOMS APPEAL NO: 39 OF 2010 - A/85232/2022 - Dated:- 29-3-2022 - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri R K Dwivedy, Additional Commissioner (AR) for the appellant Shri Prashant Patankar, Consultant for the respondent ORDER The issue in this appeal of Revenue arises from the disapproval of the order of the original authority who, by construing an expression therein, denied the benefit of the exemption notification claimed on import of the impugned goods. Predictably, Learned Authorized Representative placed substantial emphasis on the decision of the Hon ble Supreme Court in Commissioner of Customs (Import), Mumbai v. Dilip Kumar Company [2018 (361) ELT 577 (SC)] to counter the telling observation of Commissioner of Customs (Appeals), Mumbai-I that 4.3 . (i) the AC traveled into technical area without expertise. He has not relied upon either technical opinion of an expert or any authoritative documentation on the subject to conclude whether thickness of road due to micro surfacing is a criterion to decide that the roads cannot be called constructed due to this thickness. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a better appreciation of the context in which the dispute presents itself. 3. The respondent herein, M/s Lomash Slurrytech Pvt Ltd, describing the impugned goods as second-hand slurry seal machine for filling up cracks in roads (slurry paver), model SP 11000S in bill of entry no. 898705/15.06.09, claimed coverage against serial no. 230 in notification no. 21/2002-Cus dated 1st March 2002 which would have entitled them to nil rate of duty. The original authority, instead, directed assessment on standard rate of duty by non-acceptance of the intent of deployment of the goods in construction of roads on the finding that the equipment could be used only for repair/maintenance work of existing roads. From a perusal of the order impugned before the first appellate authority, it would appear that the adjudicating authority was persuaded by circular no. 110/4/2009-ST dated 23 rd February 2009 of Central Board of Excise and Customs, from the clarification having been issued by the maintenance wing of the Public Works Department (PWD) which had awarded the work, the reference to micro-surfacing of existing roads and the common parlance meaning of new roads and, more particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out that the reliance placed by the first appellate authority on a newspaper clipping, purporting to report the novelty of micro surfacing , and on the clarificatory communication of the Public Works Department, neither of which was before the assessing authority, is extraneous to the contract which alone should guide the ascertainment of eligibility. He was critical of the fallacious logic in the conclusion that the absence of condition of utilization of the equipment on sale permitted after the minimum lock in period of five years from date of import also sufficed to relieve the goods of any deployment restriction in construction of roads by the importer. He argued that the decision of the Hon ble Supreme Court in Gammon India Limited v. Commissioner of Customs, Mumbai [2011 (269) ELT 289 (SC), holding that 22. As regards the plea of the appellant that the Exemption Notification should receive a liberal construction to further the object underlying it, it is well settled that a provision providing for an exemption has to be construed strictly. In Novopan India Ltd. (supra), dealing with the same issue in relation to an exemption notification, a three-Judge Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence for which several portions of both the contract and clarificatory letter from the Public Works Department were highlighted by him. He disputed the applicability of the decision in re Gammon India Ltd and submitted the principle of ejusdem generis suffices to demonstrate the absence of any distinction in the deployment of the several enumerations in list 18 appended to the said notification. 7. It is seen from the communication of 17th April 2009 that work of micro surfacing of various roads for a period of one year under M.Maintenance-I PWD (NCTD) was awarded to the appellant. The exemption notification envisages concessions from the standard rate of duty upon demonstrated qualification, as contract awarding authority or as contractor of project for construction of road , and upon furnishing of certain undertakings and certifications. In the present dispute, the certifications are not of relevance and any breach of the undertaking is to be elicited upon post-importation deployment of the equipment. The apprehension of the original authority, and of the reviewing authority, that the goods were intended to be used in breach of the condition of exemption is built upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad construction would suffice to meet the commercial objective of optimum utilisation and convergence with public interest that motivated the grant of exemption. Needless to say, deployment on a project other than road would serve as disentitlement. making it abundantly clear that any violation of the post-importation conditions is to be responded to by enforcement of the undertakings furnished at the time of import and not by pre-emptive burdening of some part of the construction of roads project by executive overreach. The eligibility of the project itself or the status of the appellant, as contractor eligible to import specified goods for the project, is not in dispute; it is the use that the impugned equipment has for the project that is with the original authority restricting the proceedings to the eligibility of the impugned goods at the threshold. Without examining the nature of the project itself, a finding on use or misuse intended or actual is beyond the scope of assessment to duties of customs as the actual usage of the goods thereafter are not the subject of the impugned proceedings. 8. In re Dilip Kumar Company, the Hon ble Supreme Court adjured rigi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Authorised Representative does not, either in evaluation of threshold eligibility or in prediction of events after clearance, impede the entitlement to benefit of the notification at the stage of clearance for home consumption. 10. With growth of population and increasing economic activity, capacity expansion of traffic thoroughfares is a continuous programme which, beyond regular maintenance, calls for periodical upgradation; in India, and presumably elsewhere in the world, it is village roads that, over a period, are transformed as state highways after a phase of existence as district roads with distinction being one of technical characteristics. It cannot be gainsaid that this upgradation of status is not acceptable as construction of roads programme. These are realities of governance and a sterile tax administration, frustratingly oblivious of government policies, will jeopardize such programmes in pursuit of revenue maximization. For the road connectivity programme of the government to be restricted to green field expansion would imply that, in the not too distant future, no land is available for man or beast to inhabit. The burgeoning network of highways in ..... 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