TMI Blog1998 (6) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 1991. Appellant claimed benefit of the Notification on importation of these goods which were provisionally released pending examination of the issue. Subsequently, in the order impugned in the appeal, Collector has held that the condition in the Notification subject to which the goods were exempted from duty were not fulfilled and hence denied the benefit of exemption and demanded duty. He has also ordered confiscation of the goods with an option to redeem them on payment of fine and imposed penalty on the appellant. 2. The Notification exempted roundabouts, swings and other fair grounds amusement equipment, their parts and accessories when imported into India for setting up of amusement parks from basic duty in excess of 45% ad valo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from owning, leasing or otherwise controlling immovable property in India and prohibited by Section 30 from carrying on any business in India without permission of the Reserve Bank of India. In view of the difficulties that would be experienced in getting permission from the RBI, the appellant entered into an arrangement with an Indian company M/s. Madhu Builders Pvt. Ltd. The arrangement was that the goods would be installed in an amusement park to be owned and operated by M/s. Madhu Builders Pvt. Ltd. The appellant s interest would be protected by issuing equity shares depending upon the value of the equipment, but not exceeding 25% of the paid up capital for Madhu Builders Pvt. Ltd. The cost of the equipment remaining uncovered by such i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds, the Notification requires that the goods should not be sold or parted with. Therefore requires legal or rejure as well as on fact of possession under rejure to be held by the importer. Use of the words part with in the Notification supports this view. Hence, the benefit of the Notification would be available only to the importer. An exemption Notification has to be strictly construed and by such strict instructions importer has parted with the goods. This is the finding in the Commissioner s order and it has therefore to be upheld. 7. The Notification permitted import at a concessional rate of the goods specified therein subject to two conditions. The first, about the compliance of which there is no dispute, is the production of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or even constructive possession. The Court in Bhagchand v. Emperor A.I.R. 1934 Bom 200 said that the word possess indicates possession with a power to disposal. The Supreme Court has also said that possession is not necessarily the same in his occupation or actual user (Bishambbar Nath v. Nisar Ali A.I.R. 1932 Outh 51) and that possession means also physical possibility of a person dealing with a property as he likes and not mere physical possession. (Bahadur Chand v. Naina Mal 133 P.W.R. 1914)." 10. Now, the importer had control of the goods in a significant manner. Agreements between the importer and Madhu Builders were not produced before us. However, there is, no doubt, that the ownership of the goods continues to vest with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of their transport to India. In India, he may again part with the goods when they are removed from the docks to a place for storage outside. He would part with them if they are required to be taken away for repair or for maintenance. It is extremely difficult virtually not possible to conceive of a situation where, for five years after importation, the goods remain in the continuous physical possession of a person without a moment s interruption. Even such a momentary interruption would be parting with the goods and would mean that the conditions of the Notification were not complied with. Applying this meaning to this Notification would mean that this condition is incapable of implementation. Such an interpretation not being permissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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