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M/s. PNC Infratech Limited Versus Union of India, The Commissioner of Customs (Appeals-II) , The Assistant Commissioner of Customs (Gr. 5)

2015 (8) TMI 1170 - MADRAS HIGH COURT

Import of paver finisher machine of only 6m - Benefit of duty exemption under notification no. 12 of 2012-Cus – Assistant Commissioner rejected claim for exemption sought by petitioner under Notification No.12 of 2012-Customs on ground that duty exemption under Customs Notification is applicable only for Electronic Paver Finisher for laying bituminous pavement of 7m size against petitioners imported paver finisher machine of only 6m – Held that:- petitioner pointed out that non-consideration of .....

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n its own merits and in accordance with law – Petition disposed of. - W. P. No. 11109 of 2015 & M. P. No. 1of 2015 - Dated:- 4-8-2015 - The Honourable Mr. Justice R. Mahadevan, JJ. For the Petitioner : Mr. B. Satish Sundar For the Respondents : Mr. K. Mohanamurali, SCCG ORDER The petitioner is a public limited company involved in the business of construction and laying of roads and development of infrastructural projects. It has been awarded the project of laying access controlled express-way be .....

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014, dated 17.02.2014 in Sl.No.368-A. 2. The third respondent-Assistant Commissioner of Customs raised queries as to the rejection of the exemption of duty and directed the petitioner to furnish the product catalogue and other import documents, for which the petitioner replied on 16.02.2015, justifying their claim for exemption by enclosing relevant document(s). By order dated 26.02.2015, the third respondent rejected the claim for exemption sought for by the petitioner under Order-in-Original N .....

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m of 9m. The third respondent followed the decision of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai in the case of Gammon India Ltd. Vs. Commissioner of Customs, reported in 2013 (289) ELT 740 (Tri-Mumbai), to arrive at his conclusion and held that even though the import documents like invoice, etc., mentioned in the description of the goods as "Electronic Sensor Paver-Vogele Model Super-1800-3 AB 600 T.V. Screed for laying bituminous pavement up to 9m, a .....

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8 of the Customs Act, before the second respondent-Commissioner of Customs (Appeals) on 13.03.2015 and the said appeal was registered. The petitioner paid 7.5% of the duty imposed as pre-deposit for entertainment of the appeal. As the goods have not been cleared, the petitioner was given preference for the hearing of the appeal, as the Bill of Entry had been alive. However, the second respondent-appellate authority is guided by the ruling of the Customs, Excise and Service Tax Appellate Tribunal .....

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petitioner is entitled to the benefit of the Customs Notification No.12/2012-Cus, dated 17.03.2012 in Sl.No.368-A or not. The third respondent-Assistant Commissioner was mainly guided by the ratio of the Tribunal in the case of Gammon India, as stated above. 5. There is a contra view in the case of Ramky Infrastructure Ltd., pertaining to the ratio of the Tribunal in Gammon India Ltd. Since there was conflicting decisions of the Tribunal, a Larger Bench was constituted, which upheld the view tak .....

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the benefit of exemption pertaining to relevant Notification is available for the petitioner. The Larger Bench of the Tribunal construed the earlier Notification strictly, without giving room for any latitude and also not taking into account the object of the Notification in allowing the import at concession rate of duty in respect of the equipment imported for public purpose of laying of roads and highways. It is also specifically stated by the petitioner that the roads and construction thereof .....

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ssed to duty by availing of the benefit of the relevant Notification. The third respondent-Assistant Commissioner of Customs, denied the benefit of the Notification and assessed the relevant duty, for which, the petitioner is prepared to submit suitable bond to safeguard the interest of the Revenue. 7. The goods under import are neither prohibited, nor restricted, and they are freely importable and the project in question is a public project. The issue before the second respondent-appellate auth .....

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authority to dispose of the appeal. 8. The third respondent has filed counter affidavit, denying the averments of the petitioner, inter-alia contending that the main issue involved in the Writ Petition is as to whether the impugned goods are eligible for concessional rate of duty under the Customs Notification No.12/2012, Sl.No.368-A or not, which question has been placed before the Commissioner of Appeals, which is now in the final stage of disposal and hence, it is premature on the part of the .....

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By the said Order-in-Original, the petitioner got the opportunity to clear the impugned goods in time on payment of duty under protest, so that they stand to get back the duty paid under protest in the form of refund, in the event of getting favourable order from the appellate authority. It is further stated that the petitioner filed appeal before the second respondent by keeping the cargo under warehouse, instead of clearing the goods by paying the duty under protest as provided under law. Henc .....

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ion is filed only for issuance of a Writ of Mandamus, and any direction by this Court to the second respondent-Commissioner of Appeals to ignore the ratio of the order of the CESTAT in identical matters as prayed for by the petitioner, may go against the essence of Section 130 of the Customs Act. The petitioner does not have the locus-standi to approach this Court seeking for the direction as prayed for in the Writ Petition and the same affects the merits of the order of the CESTAT relating to t .....

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dent(s) prayed for dismissal of the Writ Petition. 9. Heard both sides and perused the material documents available on record. 10. It is to be noted that as per Notification No.12 of 2012-Customs, dated 17.03.2012, as amended by Notification No.5 of 2014, dated 17.02.2014, the relief sought for by the petitioner was negatived by the Tribunal originally, and the matter was subsequently placed before the Full Bench of the Tribunal, which also negatived the relief, against which, the Special Leave .....

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