TMI Blog2013 (12) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... dication order it is also found that the impugned paver finisher was not used for construction of road, therefore they have not fulfilled the condition terms of undertaking/bond at the time of import. As they have violated the terms of condition of their bond/undertaking, therefore they are liable to pay duty as demanded in the impugned order. On limitation, we find that the show-cause notice has been issued for violation of undertaking given at the time of importation for intended use and the fact that the imported paver finisher was not found to be used for intended purpose during investigation which amounts to suppression, therefore, the show-cause notice issued is within limitation - Decided against assessee. - C/158, 285-287, 291, 428-432/2009 - Final Order Nos. A/150-159/2012-WZB/C-I(CSTB) - Dated:- 1-3-2012 - Shri B.S.V. Murthy and Ashok Jindal, J. Shri V. Sridharan, Prakash Shah, Mihir Deshmukh, Advocates, for the Appellant. Shri Y.K. Agarwal, SDR, for the Respondent. ORDER By these appeals, the appellants have challenged the impugned order denying the duty exemption granted under Notification 21/2002, dated 1-3-2002 and confiscation of the imported ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicated and exemption was denied, demand of duty was confirmed. The paver finisher was confiscated allowed to be redeemed on payment of redemption fine and penalty under Section 112A of the Customs Act, 1962 was also imposed. The said order is in challenge before us. 4. Shri Sridharan, ld. counsel appeared on behalf of the appellant before us and contended as under :- (a) The appellants did not contravene either any of the conditions of the notification. (b) MMRDA is a road construction corporation under the control of the State of Maharashtra and as such was covered by condition 40(a) of the Notification. Condition 40(a)(iii) specifically covers the road construction corporations under the control of State Government or Union Territory. (c) It is not disputed by the department that MMRDA is not a road construction corporation under the control of the State of Maharashtra. Thus, condition 40(a) is fully complied with in the present case. (d) Further, it is clear from the record (bid document) that availability of paver was one of the essential criteria to bid for the SCLR project. (e) The actual use of paver for SLCR project is also proved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0(b) stands fully satisfied. (n) Without prejudice to the aforesaid and in any event, it is submitted that condition 40(b) of Notification 21/2002 is not a post-import condition. (o) It is submitted that condition 40(b) is complied with on the appellants submitting the bond at the time of assessment of the imported paver. (p) It is submitted that the above submission is further supported by some of the other conditions in the notification. For example, condition 46(iii). It reads as under : (iii) in all cases, the importer furnishes an undertaking to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, to the effect that the imported goods shall be used for the purpose specified above and in the event of his failure to use the goods for the purpose specified, he shall pay an amount equal to the difference between the duty leviable on the said imported goods but for the exemption under this notification and that already paid at the time of importation. (q) The above submissions are further supported from the decisions of this Hon ble Tribunal in the case of Commissioner of Customs v. Sameer Gehlot reported in 2011 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of the undertaking but that has not been done in this case. Rather a show-cause notice has been issued invoking Section 28 of the Customs Act, 1962 vide paragraphs 25 and 27 of the notice. It is settled law that Section 28 can be invoked only in the case of short-levy, non-levy and erroneous refund. Where an exemption has been allowed after the importer has fulfilled the pre-import conditions, such a case cannot be categorised either as a case of short-levy or as a case of non-levy. In the absence of any post-import condition in the exemption notification, action cannot also be taken under Section 111(o) which, in any case, has not been invoked in the show-cause notice. (r) It is submitted that, with respect, this Hon ble Tribunal in the case of King Rotors and Air Charters Private Limited - 2011 (269) E.L.T. 343 (Tri.-Mumbai), could not have distinguished the order of this Hon ble Tribunal in the case of Sameer Gehlot. It is submitted that the Hon ble Tribunal in the case of King Rotors ought to have referred the matter to the Larger Bench, in the event the Hon ble Members were of the view that decision in Sameer Gehlot was not correct. (s) It is held by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a Larger Bench if it disagrees with the earlier pronouncement. We respectfully concur with these observations and are confident that all the Courts and various Tribunals in the country shall follow these salutary observations in letter and spirit. (t) Without prejudice to the aforesaid and in any event, it is submitted that the Serial No. 230 of the Notification 21/2002 exempts goods specified in list 18 required for construction of roads. (u) It is submitted that use of expression required for makes it clear that exemption is available if the imported goods are intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in National Organic Chemical Indus. Ltd. (supra) are substantially similar to the present Notification. The appeal preferred by the Department from the decision of the Tribunal was dismissed by this Court on 20th February, 2002 - Commissioner of Customs v. M/s. National Organic Chemical Indus. Ltd. [CA. No. 6764/99]. The Tribunal, however, relied upon its earlier decision in the case of Commissioner of Central Excise, Meerut v. M/s. BPL Display Devices Ltd. reported in 2002 (147) E.L.T. 912 to hold against the appellant. This Court following the affirmation of the Tribunal s reasoning in National Organic Chemicals Indus. Ltd. (supra) on 20-2-2002, allowed the appellant s appeal. This appeal must therefore be necessarily allowed. We are of the view that no material distinction can be drawn between the loss on account of leakage and loss on account of damage. The words for use used in similar exemption Notifications have also been construed by this Court earlier in the State of Haryana v. Dalmia Dadri Cement Ltd. - 1987 (Suppl) SCC 679 to mean intended for use . According to this decision the object of grant of exemption was only to debar those importer/manufacturers from the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no evidence of any transfer at all, therefore, there was no disposal of the goods as known to law. The High Court records that admittedly there was no transfer of the cashew shells, the lime shells or the consumed stores in this case. These were used by the assessee himself as fuel in the case of cashew shells for the maintenance of kiln. Sub-clause (b) of Section 5A(1) was, therefore, not applicable. In the background of the facts of this case, the High Court, in our opinion, was right... (ee) It is submitted whenever the Government of India wanted a stringent condition it is so specifically provided. (ff) For example, Notification No. 47 of 1998, has following condition : (2) The donee undertakes to observe the procedure, prescribed by the Assistant Commissioner of the Customs having jurisdiction, for transport of the said goods from donor to his premises and such goods shall not be used for commercial purposes, and shall not be sold, disposed of, gifted, loaned, exchanged or parted with without the permission of the said Assistant Commissioner within the five years from the date of the receipt of the said goods to him from the donor. (gg) Notification No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the above allegations are untenable in law. The proper officer at the time of assessment was of the opinion that the appellants are entitled to exemption for a contract with MMRDA and extended the benefit of the notification. (qq) It appears that present SCN is based on changed opinion. In such a case, extended period cannot be invoked. (rr) It is submitted that imported paver is not liable to confiscation under Section 111(o). (ss) It is submitted that under the Notification there was no post-import condition. The conditions of the notification were fully complied with at the time of import and therefore Section 111(o) has no application in the facts of the present case. In any event, no penalty can be imposed in the facts of the present case under Section 112(a) of the Act. 5. Apart from the above contentions, he also relied on C.C.E. v. Sameer Gehlot - 2011 (263) E.L.T. 129 (T-Del.) and UOI v. Rai Bahadur - 1969 (1) SCC 91, BSP Display Devices - 2004 (174) E.L.T. 5 (S.C.), Steel Authority of India - 1996 (88) E.L.T. 314 (S.C.), Mediwell Hospital and Healthcare - 1997 (89) E.L.T. 425 (S.C.). 6. The contentions of the ld. counsel were strongly opposed by the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Customs, as the case may be, a certi-ficate from an officer not below the rank of a Dy. Secretary to the Govt. of India in the Ministry of Surface Transport (Roads wing), or as officer not below the rank of Chief engineer of the National Highways Authority of India, to the effect that the imported goods are required for construction of roads in India. 9. It is contended that by the ld. Sr. advocate that the condition No. 40A is fully satisfied and there is no dispute. We do agree with the same. It is also contended on behalf of the appellant that condition 40B is also fully satisfied at the time of import by execution of bond by the appellant to the effect that he shall use the imported goods exclusively for construction of roads and he shall not sell or otherwise dispose of the said goods in any manner for a period of 5 years for the date of importation. Therefore they have not violated the condition 40B and have rightly claimed the exemption under the above Notification as the undertaking is a pre-import condition and condition No. 40B is not a post-import condition. Therefore the appellant has not violated any condition of the said Notification and for the same he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mentioned total work in the contract, the later part i.e. engineering erection of rail, gantry crane bundle strip system, electric panel and compressor is being carried out by project division. The paver finisher was used for dry lean concrete for an area of 1200 sq.mtr. initially and thereafter another area of 8000 sq.mtr was also undertaken by said paver finisher. 12. From the statement of Rajiv Nath, we find that the paver finisher was used not for construction of road but for the construction of depot and platform for storage of pipes. 13. As per the condition of the Notification, the undertaking was given by the appellant at the time of import that the impugned paver finisher shall be used only and only for construction of roads for a period of 5 years. From the facts ascertained hereinabove, we find that the paver finisher was not used for the intended purpose as undertaken by the appellant. In view of this finding, the department has rightly issued show-cause notice to the appellant for violation of condition of their undertaking and thereby for denying the exemption under Notification 21/2002. As show-cause notice has been rightly issued and in the adjudication order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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