TMI Blog2013 (4) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... contractor. Subcontractor performs work under a contract with a general contractor, rather than the employer who hired the general contractor. - the appellant cannot be considered as a sub-contractor since he has not been named as such in the contract awarded to the consortium. - Against assessee. - C/895/2011 - A/12/13/CSTB/C-I - Dated:- 8-1-2013 - P R Chandrasekharan and Anil Choudhary , JJ. For the Appellant: Shri Prasad Paranjape. For the Respondent: Shri Navneet, Addl. Commissioner. The appeal is directed against Order-in-appeal No. 416(Gr.VA)/2011(JNCH)/IMP/346 dated 20.09.2011 passed by the Commissioner of Customs (Appeals), Mumbai II, JNCH, Nhava Sheva. 2. The appellant, M/s Gammon India Ltd. Mumbai, (Gammon in short) imported a consignment of Electronic Sensor Paver Vogetel model super 1800-2 with AB 600-2 TC screed for laying bituminous pavement upto 9 M width along with accessories vide Bill of Entry No. 934212 dated 10-3-2010 and claimed duty exemption under notification No. 21/2002-Cus dated 1-3-2002 vide Sl. No. 230 of the Table annexed to the said notification. The said notification vide List 18 (sl. No. 2) granted duty exemption to Electronic pav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. The appellant was the lead member of the consortium. As per the Concession Agreement, the agreement includes Request for Proposal (RPF) document issued by the NHAI and any amendments thereto made in accordance the provisions contained in the agreement apart from the agreement and its schedules A' through X' thereto. The RPF document requires execution of Memorandum of Understanding (MOU) and as per the MOU dated 24-1-06, the role of the appellant was defined as that of carrying out construction work. Further as per the agreement contractor means the contractor or contractors, if any, with whom the concessionaire has entered into all or any part of the Project Agreements. The appellant had executed an EPC contract dated 14-4-2007 with M/s GICL. Therefore, the appellant should be deemed as a sub-contractor and therefore, they are rightly entitled for the benefit of duty exemption. 3) Accordingly he pleads for allowing the appeal. 4 The ld. Additional Commissioner (AR) appearing for the Revenue strongly opposed the contentions of the appellant. He made the following submissions:- 1) The equipment eligible for import is Electronic paver finisher (with sensor device) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. Chapter or Heading or sub - heading Description of goods Basic Duty of Customs Additional duty of Customs Condition No 230. 84 or any other Chapter Goods specified in List 18 required for construction of roads Nil Nil 40 LIST 18 (1) Hot mix plant batch type with electronic controls and bag type filter arrangements more than 120 T/hour capacity (2) Electronic paver finisher (with sensor device) for laying bituminous pavement 7 m size and above (3) .. 15) Hydraulically operated rough terrain self propelled 100 tons crane with telescopic boom (16) (17) Mobile concrete pump placer of 90/120 cu m/hr. capacity 20) Hydraulic gantry crane of 100 tonnes capacity for launching truss .. CONDITIONS 40 If,- (a) the goods are imported by- (i) the Ministry of Surface Transport, or (ii) a person who has been awarded a contract for the construction of roads in India by or on behalf of the Ministry of Surface Transport, by the Natio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it does not satisfy the criterion of 7 meters size and above. If the intention was to cover the width of the bolt-on extensions also, the same would have been so specified in the notification. Thus from the product catalogue, it is amply clear that the equipment under import does not satisfy the product specification stipulated in List 18 of the notification and consequently, the equipment under importation does not qualify for the benefit of exemption and we hold accordingly. 5.4 It is a well-settled position in law that an exemption notification, being an exception, should be strictly construed. The principle of strict interpretation of taxing statutes is best enunciated by Rowlatt J in his classic statement: In a taxing statute one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. Applying the above principle to the facts of the present case, the equipment under import does not fall under the category of sixe 7 meters and above specified in List 18 serial no. 2 of the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows:- a. Construction Works: GIL shall be responsible for the execution of construction works to the Project. b. Operations Maintenance Works: GIL and /or GIPL shall be responsible for the operations and maintenance works for the Project. As per clause 10 of the said MOU - That the Parties shall be jointly and severally liable for execution of the Project in accordance with the terms of the Concession Agreement. 6.2 The argument of the appellant is that this MOU which is part of RFP should be considered as a sub-contract and the appellant, M/s GIL should be deemed as a sub-contractor. This argument is totally illogical and unacceptable for the following reason. Firstly the MOU was reached among the members of the consortium for forming a Special Purpose Vehicle with shareholding commitments expressly stated. Secondly the MOU was reached with respect to each member's rights and obligations towards each other and their working relationship. By no stretch of imagination, this MOU can be considered as a sub-contract. A sub-contract has to be between the main Contractor who is M/s GCIL on the one hand and the appellant, M/s GIL, on the other spelling ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us nor is it part of the records. Assuming the contention to be true, the concession agreement between GICL and NHAI was entered into on 6 th October, 2006. The so called sub-contract between the appellant and M/s GICL was entered into on 14-4-2007. If that is so, how can the appellant be named as a sub-contractor in the agreement dated 6-10-2006 when no sub-contract was in existence? Thus from whichever way one looks at it, the appellant does not satisfy condition No.40(a) (iii) so as to be eligible for the benefit of duty exemption. 6.5 It would be relevant at this juncture to refer to the decision of the hon'ble apex court in appellant's own case cited supra. The facts of the said case are reproduced verbatim from the Tribunal's decision reported in 2003(156) ELT 883 Tri. Mum below:- 1. Gammon India Ltd., Mumbai, the respondent to this appeal, and Atlanta Infrastructure Ltd., Mumbai, entered into a joint venture agreement on 18th September, 2000. The agreement was entered into for the purpose of tendering a bid to the National Highway Authority of India in order to secure the contract for construction of the stretch from 31.40 kilometres on National Highway 5. The ventur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (JV) and not to Gammon India Ltd. The importer waived issue of notice at the hearing and requested a decision. The Deputy Commissioner of Customs, basing his reasoning on the grounds above, and holding that an exemption notification is strictly interpreted, concluded that since the importer did not satisfy the conditions contained in the exemption notification, it was not entitled to the exemption and denied it. . 6.6 The appeals of the appellant were rejected by the lower appellate authority and this Tribunal and the appellant filed an SLP before the hon'ble apex court. In the said case, the hon'ble apex court framed the question for consideration as follows:- 12 The short question for determination is whether import of the specified machine by Gammon can be considered to be an import by a person who has been awarded a contract for construction of the roads in India , so as to fulfill condition No.38, laid down in Exemption notification No.17/2001-Cus, dated 1 st March, 2001? . 6.7 After hearing both the sides, the hon'ble apex court held as follows in paras 20 and 21 thereof. 20. The argument was that since a joint venture has been declared to be a legal entity i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption." 23. Applying the above principles, we are of the opinion that since in the instant case the language of condition No.38 in the Exemption Notification i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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