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2015 (2) TMI 375 - AT - CustomsImport of construction machinery - Denial of benefit of the Notification 21/2002-Cus - violation of the post-importation condition - Held that:- As regards the imports of stone crushing plant, the same was used for a project awarded by MMRDA. The issue, whether MMRDA is a road construction corporation on envisaged in condition No. 40(a) of Notification No. 21/2002-Cus was examined at length by this Tribunal in the case of Shreeji Construction (2013 (4) TMI 654 - CESTAT MUMBAI) and it was held that MMRDA is not a road construction corporation within the scope and context of condition NO. 40(a). This conclusion was arrived at after careful and detailed analysis of the constitutional and organizational architecture of MMRDA and on a critical analysis of the constitutional and generic statutory functions entrusted to MMRDA. Therefore, the appellant was not entitled ab initio for the benefit of the Notification 21/2002-Cus. It is an admitted position that after using the equipment for a period of 1 to 1 ½ years, the imported goods were diverted for use by others, namely M/s. Balaji Tollways Pvt. Ltd. and by Indian Equipment Infrastructure Ltd. In other words the appellant did not utilise the goods for a period of five years for the construction of roads by himself. Thus, there is a clear violation of the post-importation condition. An exemption Notification has to be construed strictly, the same being in the nature of an exception. Inasmuch as the conditions of the exemption Notification has been violated, the appellant is, obviously not eligible for the benefit of exemption and consequently the appellant becomes liable to pay the differential duty at the rate prevailing at the time of importation of the goods. Appellant is liable to pay the differential duty of ₹ 1,44,11,453/- in respect of stone crushing plant imported vide Bill of Entry No. 512887 dated 16/11/2004 and differential duty of ₹ 88,63,329/- in respect of hot mix plant imported vide Bill of Entry No. 528443 dated 03/01/2005 under the proviso to Section 28(1) of the Customs Act, 1962 and also in terms of the bond/undertaking executed by the appellant at the time of importation. Inasmuch as the appellant had suppressed the fact of diversion, extended period of time is rightly invocable for demand of differential duty and we hold accordingly. Consequently, the appellant is also liable to pay interest under Section 28AB of the Customs Act, 1962. As regards the confiscation, inasmuch as the appellant had diverted the goods before the completion of five years, the same are liable to confiscation for violation of post-importation condition and, therefore, the provisions of Section 111(o) of the Customs Act are clearly attracted. Therefore, the confiscation of the goods cannot be faulted at all. However, redemption fine is reduced. Penalty on appellant is reduced and Penalty on the Managing Director Shri Rajhoo Barot is set aside. - Decided partly in favour of assessee.
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