TMI Blog2003 (4) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... Infrastructure Ltd. It provided that the parties shall be jointly and severally liable to the National Highway Authority of India for execution of contract. It designated Gammon India Ltd. to be the lead partner to the venture. 2. The bid tendered by the joint venture was accepted by the National Highway Authority of India. Gammon India Ltd. subsequently imported a mobile batching plant which, we are told, is an equipment required in road concrete mixing plant. In the bill of entry that it filed in the Bombay Custom House in July, 2001 for clearance of this plant, it claimed exemption from duty in terms of Entry 217 of the table to Notification 17/2001. This entry exempts from duty goods specified in the notification required for construction of roads subject inter alia to the condition that the goods are imported by the Ministry of Surface Transport or a person who has been awarded a contract for construction of roads in India by or on behalf of the Ministry of Transport or other authorities designated in the notification of the Central or State Government or by a person as sub-contractor to a contract that has been awarded by any of these authorities. With regard to two of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r course of action was also available to the appellants that they could have filed a warehousing bill of entry in their name and then transferred the goods to the Joint Venture by way of ex-bond bill of entry thereby availing the benefit of the impugned notification. He therefore held that the benefit of the exemption was available to the goods. This appeal by the Commissioner is against that order. 4. The departmental representative emphasises that Gammon India Ltd. is neither a contractor who has been awarded a contract for road building by any of the authorities specified in the notification, nor a sub-contractor of such contractor. The goods are imported not by the joint venture but by an individual partner constituted by a joint venture. No intention is manifest in the notification to allow the exemption to imports made by individual partners of the joint venture. The Commissioner (Appeals) has erred in taking the view that the notification is clearly interpreted. He should have gone by the plain words of the notification. 5. Counsel for the respondent contends as follows. The status of the joint venture in question is to be determined keeping in view the terms and condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, Department of Revenue, drawing the attention of the Commissioners to the Explanatory Notes to the budget papers in which it has been clarified (with reference to the exemption notification) to the contractor/sub-contractor for the construction of roads is a joint venture concern. The concession can be availed only in respect of the joint venture and not in respect of imports made by individual partners/constituents of joint venture and this had earlier been the intention of the notification. 7. An application filed by the respondent in taking on record additional documents, consisting of the joint venture agreement, the contract between the National Highway Authority of India and the joint venture, correspondence between the National Highway Authority of India and Gammon India Ltd., and between the Ministry of Road Transport and the Assistant Commissioner and the National Highway Authority of India, has been accepted. It is to be noted that these documents have in fact been referred to in the order of the Deputy Commissioner. These are necessary for full understanding of the issue. 8. It is accepted by both sides that the joint venture with which we are concerned does not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment for the goods had been made, not from the joint venture account which has been provided for the contract, but from the funds of Gammon India Ltd. These factors confirm that the importation has not been made by the joint venture but by Gammon India Ltd. 9. We accept the point made by the Counsel for the respondent that the importation has been made by Gammon India Ltd. by carrying out the project which has been awarded to the joint venture. However, that has not answered the objection that the department has raised that the importation has to be made by a contractor for the project. That contractor, clearly, is not Gammon India Ltd. 10. We will now consider the Supreme Court s judgment that is relied upon by the respondent. New Horizons Ltd. filed a writ petition in the Delhi High Court against the decision of the Department of Telecommunications, Hyderabad, refusing to consider the offer made by it in response to a tender for printing telephone directories from Hyderabad. The offer was rejected because it did not submit evidence to show that it had undertaken compiling and printing for supply of telephone directories to the capacity of 50,00,00,000/-, one of the qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
