New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (9) TMI 1015 - CESTAT CHENNAI

2015 (9) TMI 1015 - CESTAT CHENNAI - TMI - Benefit of Exemption S.230 of Notification No.21/2002-Cus. benefit of notification was rejected both by adjudicating authority as well as by LAA on ground that appellant cannot be considered as person who has been awarded contract by NHAI and they are only contractor or sub-contractor appointed by STPL(SPV/Concessionaire) - Asphalt Mixing Plant Held that:- At per letter, it is clearly stated that pursuant to Assignment Agreement, STPL has awarded .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gned order set aside Decided in favour of Assesse. - Appeal No. C/348/2003 - Final Order No.40713/2015 - Dated:- 23-6-2015 - Shri R. Periasami, Technical Member and Shri P.K. Choudhary, Judicial Member, JJ. For the Petitioner : Shri A.K.Jayaraj, Advocate For the Respondent : Ms. Indira Sisupal, AC (AR) ORDER Per R. Periasami 1. Appellant filed appeal against the impugned order dt.25.7.2003 passed by Commissioner of Customs (Appeals), Chennai. 2. The brief facts of the case are that appellant f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. Advocate appearing on behalf of the appellants submitted that they are eligible for the exemption notification No.21/02-Cus. for import of said machines which are used in construction of national highway. He explained the Sl.No.230 of Notification covers goods falling under Chapter 84 or any other chapter and the machines are covered in Sl.No.18 of the list, and they complied with condition No.40 of the said notification. 3.1 He drew our attention to para-5 of the order-in-original where the a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

evant copies of concession agreement appended to the appeal paper book. The first agreement is dt.27.3.2001 viz. Concession Agreement entered into between National Highways Authority of India (NHAI) and CIDB Inventures SDN BHD (Malaysia) [CIDBI, for short]. He relied clause (D) of the agreement that the SPV as the entity which shall undertake, fulfil and perform the obligations and exercise the rights of as per this agreement. The definition of "Concessionaire", "Contractor", .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ignment/Transfer of the Concession Agreement at 2.1 2.3, 2.4 and 2.5, STPL (SPV) has been assigned full rights, duties and obligations under the concession agreement entered on 27.3.2001 between NHAI and CIDBI. He further submits that this assignment agreement shall form an integral part of the concession agreement dt.27.3.2001. He submits that based on this, the appellant entered into an agreement viz. EPC Contract dt.20.9.2001 with STPL.The appellants have been conferred as a contractor appoin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

essionaire and awarded contract to the appellant on 30.7.2001 and relied relevant clauses at page 176 of Paper Book. 3.4 He submits that NHAI issued a letter dt.18.2.2002 addressed to Deputy Commissioner of Customs and specifically recommended for exemption on the import of Asphalt Mixing Plant model Speco TSAP -1550FFW including accessories for the above work as per Govt of India, Ministry of Finance Notification No.16/2000 dt.1.3.2000. Therefore, the appellants have rightly claimed the benefit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

bunal Bench dismissed the Revenue's appeal as reported in 2009 (247) ELT 776 (Tri.-Chennai). He submits that both are identical imports and covered under the NHAI authority for execution of project of widening of National Highway and therefore pleaded that they are eligible for the exemption benefit. 4. On the other hand, Ld. A.R for Revenue reiterates the findings of adjudication order. She submits that adjudicating authority has rightly denied the benefit of exemption as Sl. No.(iii) of Co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aid goods in any manner for a period of five years from the date of their importation. She further submits that as per clause (iii) of the notification benefit is admissible only to a person who is part of the contract. In this case, appellant is not mentioned as a contractor in the agreement entered between NHAI & CIDBI. She submits that appellant-importer is a sub-contractor of the contractor. She relied on the Supreme Court judgement rendered in the case of Gammon India Ltd. Vs CC Mumbai .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. We find that appellant imported "Asphalt Mixing Plant Model Speco TSAP-1550FFW" and claimed the benefit of Exemption Notification No.21/2002 under Sl.No.230. The benefit of notification was rejected both by the adjudicating authority as well as by the LAA on the ground that appellant cannot be considered as a person who has been awarded the contract by NHAI and they are the only the contractor or sub-contractor appointed by STPL(SPV/Concessionaire). Appellants contended that they are .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n (Vizag Section) in the State of Andhra Pradesh and its operation and maintenance on Build-Operator-Transfer(BOT) basis. For the sake of easy understanding, the relevant para 3 and 3.1 of the OIO is reproduced below :- "3. The letter No.15021/2001/Tech/GM(E)/90 dated 18.2.2002, issued by NHAI stated that the importer M/s.Bumi Hiway (India) Pvt. Ltd. are required to import necessary machineries and construction equipment for execution of the contract for Tada-Nellore-BOT PROJECT. Currently, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

m for exemption produced by the importer it appears that, (i) M/s. Speco Limited, Seoul, Korea have sold one unit of Speco Asphalt mixing Plant (model No.TSAP-1550FFW of 124 tons per hour capacity to BHL vide invoice No.01-A-6029 dt.21.2.2002 for USD 281,031.75 CIF. (ii) The goods under import are one unit of Speco Asphalt mixing Plant with capacity upto 124 TPH. (iii) Based on a Memorandum of Agreement (MOA) entered between the National highway Authority of India (NHAI) representing the Governm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

asis. Pursuant to this agreement, CIDBI was required to constitute special purpose vehicle (SPV) either by itself or jointly with other parties for the purpose of implementing, the project. They have formed M/s. Swarna Tollway Ltd. (STL) and incorporated it as a special purpose vehicle (SPV) for implementing the project on BOT basis. They have further appointed BIL as sub-contractors to the above work. Accordingly, the importer BHL is claiming the benefit of import duty exemption benefits under .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s assignment agreement, STPL (SPV) becomes part of the MOA and acquires the right, duties and liabilities of the Concession Agreement between NHAI and CIDBI. As per clause 2.5 of the assignment agreement, STPL can further assign the concession in favour of its lenders and/or any other party, selected in consultation with NHAI and in accordance with the provisions of the Concession Agreement. Therefore, it is evident that STPL entered into EPC contract with the appellant for execution of the proj .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in their letter dt.18.2.2002 has clearly brought out various clauses of the agreement and the MOA signed between Govt of India and Govt of Malaysia and also setting up of SPV and recommended for exemption of duty for import of "Asphalt Mixing Plant Model Speco TSAP-1550FFW" imported by the appellant for executing the project under the Notfn 21/02. At para-4 of the above letter, it is clearly stated that pursuant to the Assignment Agreement, M/s.Swarna Tollway Pvt. Ltd. has awarded the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

; (Joint Venture) whereas the Apex Court held that Joint Venture could be treated as a legal entity with Gammon as constituent and imports were not made by JV and Gammon India is not a person who has been awarded by NHAI and benefit of notification is not available to M/s. Gammon India Ltd. In the present case STPL has been created as Special Purpose Vehicle (SPV) as per the Concession Agreement between Govt of India (NHAI) and the Govt of Malaysia by virtue of Assignment Agreement dt. 29.6.2001 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version