TMI Blog2015 (2) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16/11/2004 and one unit of Linnhoff Mobile Asphalt Batch Type Hot Mix Plant with pollution control system at 124 TPH capacity, Model TSD 1500 with accessories valued at ₹ 2,19,52,198/- under Bill of Entry No. 528443 dated 03/01/2005. The appellant claimed the benefit of Notification No. 21/2002 dated 01/03/2002 (serial No. 230, List No. 18 Condition NO. 40). At the time of importation of the stone crushing plant the appellant furnished copies of work-orders from MMRDA for the widening and construction of Western Express Highway from Asha Nagar subway to Kulupwadi pedestrian subway to SN. Dubey Road junction and also from Times of India Flyover North end to Ashanagar subway. Similarly, for the hot mix plant they furnished a contract from the Government of Gujarat, Road and Building Department, for construction of Surat-Dhulia road on NH6KM 7/4 to /13/2. They executed a bond with the Customs authorities under Condition No. 40(b) of the said Notification to use the machines themselves exclusively for construction of roads and that they will not sell or dispose of the goods in any manner within a period of 5 years. 3.2 Intelligence gathered by the department revealed that M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the imported equipment for other purposes and also MMRDA was not one of the approved agencies for award of contracts for construction of roads, the department issued a show cause notice dated 13/06/2008 proposing to deny the benefit of Notification 21/2002-Cus dated 01/03/2002 and proposing to recover the differential duty of ₹ 1,44,11,453/- on the stone crushing plant and ₹ 88,63,329/- on the hot mix plant along with interest thereon under the provisions of Section 28 of the Customs Act,1962, read with bonds/undertaking executed by the appellant at the time of import. It was also proposed to impose penalties on the appellant, M/s. AIL under Section 112/114A of the Customs Act, 1962 and on Shri Rajhoo Barot, Managing Director under Section 112 of the said Customs Act. The said notice was adjudicated vide the impugned order wherein the proposals in the above show cause notice were confirmed. Hence the appeals. 4. The learned counsel for the appellant M/s. AIL and Shri Rajhoo Barot, fairly concedes that in view of the decision of this Tribunal in the case of Shreeji Construction vs. Commissioner of Customs, Mumbai - C/1170/2012/ 02-01-2013 wherein it was held that M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... projects Ltd. in final order No. A/157/14/CSTB/CI dated 06/02/2014 and, therefore, this decision has become final. 5.1 The learned Additional Commissioner (AR) further points out that as per the terms and conditions of the Notification 21/2002, the appellant was required to use the imported machinery for the contracts awarded to them at the time of importation of machinery and by themselves, for a period of five years. In the present case, the machinery after use for a period of 1 years, were diverted elsewhere by renting out the same for monetary consideration. Similarly, in respect of the hot mix plant, the appellant at the time of importation had claimed that it will be used for construction of roads in respect of contracts awarded by Government of Gujarat but the hot mix plant was never used for the said contract and instead used to execute a contract awarded by MMRDA for sometime and later on rented out to Siddhardha Construction (P) Ltd. Similarly, the stone crushing plant was diverted to Nagpur for construction of roads in respect of a contract awarded to M/s Balaji Tollways Ltd. Thus, the diversion of the imported goods is a violation of the post-importation condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of importation. In the present case, it is an admitted position that after using the equipment for a period of 1 to 1 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. 6.3 It is a settled position in law that 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. 6.4 There is no dispute in the present case, about the quantum of duty computed. Therefore, we hold that the 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 &# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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