TMI Blog2015 (4) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... ority of India, having never been retracted later, were made voluntarily. Reliance on the said statements, therefore, by the authorities below cannot be said to be unwarranted in law. It is clear that on a holistic reading of the letter what has been imported is "the basic character" of the hot mix plant and not a complete plant as it is clear that what is manufactured indigenously would alone ultimately complete the plant. - Equally the letter dated 20.1.2002 being a letter by the National Highways Authority of India does not take us much further. In fact, as has been pointed out above, Shri M.V.N. Rao of the said authority candidly admitted that a complete plant had not been imported and that the imported components did not have the essential characteristics of the hot mix plant in question. In the present case, both the oral evidence and the documentary evidence ultimately lead to the same conclusion: namely, that what was imported was not a hot mix plant that was complete in itself. - CESTAT has already given the appellant considerable relief. The redemption fine of ₹ 5,00,000/- imposed by the Commissioner was reduced to a fine of ₹ 1,00,000/- and a penalty of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imported goods exclusively for the construction of roads and that he shall not sell or otherwise dispose of the said goods, in any manner, for a period of five years from the date of their importation; and c) in case of goods of serial nos. 12 and 13 of List 11, the importer, at the time of importation of such goods, also produces to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, a certificate from an officer not below the rank of a Deputy Secretary to the Government of India in the Ministry of Surface Transport (Roads Wing), to the effect that the imported goods are required for construction of roads in India. List 11 with which we are concerned contains several entries. We are concerned with Entry No.1 which reads as follows: (1) Hot mix plant batch type with electronic controls and bag type filter arrangements more than 120 T/hour capacity. A purchase order was placed by the appellant on M/s Lintec GmbH Co.KG, Germany, for supply of a hot mix plant for a total value of 906,574 DM. Lintec and the appellant decided to split the purchase order between Lintec, Germany and M/s Marshalls, Chennai. Lintec was now to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection and commissioning of the plant by M/s. Marshall. The cost of the plant is divided in the ratio approximately 60:40 between the partners M/s. Lintec, Germany and M/s. Marshall. 14.3 Further the agreement includes the cost of transportation of the imported components to the factory of M/s. Marshall. As per their Technical Transfer Contract, M/s. Lintec supplied the drum assembly and the components for the manufacture of the plant by M/s. Marshall. No separate agreement had been entered either by the principal or the local representatives with the importer M/s. IVRCL. I find that the principal and the local representative of the supplier as per their discussion and communications with the importer, had arranged to raise the import documents by describing the goods as a complete plant though the goods supplied are only the drum assembly and components. The examination of the imported goods confirmed that out of 11 segments of the whole plant to be supplied in a fully assembled condition to the importers, only one assembled segment viz. drum container covering the screening and drying drum had been supplied apart from the components in another commercial container. 14.4 I a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity must establish clearly that he is covered by the said provision and that, only in the case of doubt or ambiguity, the benefit thereof must go the State. If the goods in question satisfy the description given at Item No.(1) in List-11, it will be eligible for the exemption. The description reads : Hot mix plant batch type with electronic controls and bag type filter arrangement 160 tons per hour capacity. The Revenue has argued that a complete hot mix plant was not imported and that only some components thereof were imported. The appellants have contended that, barring some steel structures, all the essential components of hot mix plant were imported in terms of purchase order placed on the German supplier. We have come across two purchase orders in the file, marked as Annexures-4 and 6 of the memorandum of appeal, both identically numbered and identically dated (No.11 dated 21.7.2001). The Annexure-4/purchase order shows an amount of DM 906,574 while Annexure-6/purchase order shows an amount of DM 550,000 as the total price of what is described as hot mix plant (batch type) CSD 2500, CAP 160 tons per hour as per specifications enclosed . It has been claimed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VRCL, they had provided bitumen tanks and storage silo (containers with internal fabrication) and other structural fabrications for the hot mix plant in question. He also stated that the plant consisted of 11 containerised sections, of which a few were provided by Marshall. Sh. J. Bhattacharjee of Marshall stated that the components manufactured indigenously were essential for the function of the plant. Sh. S. Ramachandran of IVRCL himself admitted that the plant was not complete without addition of the indigenous items. Shri M.V.N. Rao of NHAI stated, after examining the import documents, that the complete plant had not arrived and that the imported components did not have the essential characteristics of hot mix plant. All these statements - none of them retracted or controverted - coupled with the documentary evidence would prove beyond doubt that the goods imported by IVRCL did not represent anything with essential character of a hot mix plant, let alone a complete plant, to satisfy the description at Item No. (1) of List-11 under the Notification. Therefore, we are unable to accept the counsel's argument that the imported goods should be treated as 'hot mix plant unass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented unassembled or dis- assembled. It is clear that such note will have no application to an exemption notification which is issued under Section 25 of the Customs Act. Therefore, the fact that an unassembled plant which is incomplete but which has the essential character of a complete plant is not the test to be applied in the present case. On the other hand, the applicable test would be what has been laid down in a catena of decisions. Two such decisions will suffice. In Commissioner of Customs (Imports), Mumbai v. Tullow India Operations Ltd., (2005) 13 SCC 789, this Court held: 34. The principles as regards construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed liberally. An eligibility criteria, therefore, deserves a strict construction, although construction of a condition thereof may be given a liberal meaning. Similarly in G.P. Ceramics Private Limited v. Commissioner, Trade Tax, Utta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Marmgoa, (2002) 1 SCC 155, after quoting from several other judgments, that such statements are admissible in evidence. The Court has merely to scrutinize whether the admissions made were voluntarily or otherwise. In the present case, it is clear that unretracted statements made by none other than the Vice President of the appellant company, representatives of Marshalls, and a representative of National Highways Authority of India, having never been retracted later, were made voluntarily. Reliance on the said statements, therefore, by the authorities below cannot be said to be unwarranted in law. Shri Lakshmikumaran in a written submission has accepted that statements given under Section 108 are admissible as evidence. However, he has cited a number of authorities to the effect that when such statements are in direct conflict with documentary evidence, the latter should be given greater weight. Thus, he relied upon a letter dated 18.1.2002 written by the Vice President of the appellant to the Chief Commissioner of Customs, Chennai and another letter dated 20.1.2002 by National Highways Authority of India to the Chief Commissioner of Customs, Chennai. A perusal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
