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2016 (11) TMI 675 - CESTAT MUMBAI

2016 (11) TMI 675 - CESTAT MUMBAI - TMI - Project import - second-hand thermoforming plant and production line - N/N. 132/85 - Held that: - the Revenue has failed to establish any provision under Notification 132/85 or the Project Import Regulations or under Chapter heading 98.01 that prohibited sale of goods imported under chapter heading 98.01. The chapter heading 98.01 is a facility extended and not a concession granted. When a complete plant is imported, it may consist of thousands of differ .....

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. They have installed machinery in their plant and put the equipment to use for more than two years. It is only when the plant became unviable and was lying idle for more than 18 months that the appellant disposed of the plant. We find that in the absence of any restriction of such sale, the benefit of assessment under chapter heading 98.01 cannot be denied - appeal allowed. - Appeal No. C/239/05-Mum - Dated:- 21-10-2016 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Raju, Member (Technical) Sh .....

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der Notification 132/85 was levied. The appellant thereafter submitted necessary documents for finalization of provisional assessment and provisional registration of contract. In terms of CBEC instructions contained in letter No.512/8/89-Cus-VI dated 14.6.1991, a request was made to Deputy Commissioner of Customs and Central Excise, Nagpur, to conduct plant site verification for the imported goods on 16.10.2003. The central excise formation at Nagpur submitted a report to the customs that the sa .....

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g that the appellant could not have diverted the goods to local market violating the provisions of Project Import Regulations, 1986. It was held that since the appellant had violated the conditions of the Project Import Regulations, they are not entitled to finalization of assessment under heading 98.01 and at effective rate of duty prescribed under Notification 132/85. The goods were classified under heading 8479.89 and a demand was issued for basic customs duty @ 80%, auxiliary duty at the rat .....

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tted copies of form RT-12 returns and monthly extract of PLA and RG-23A registers duly certified by the central excise authorities in respect of their claim. The appellant argued that in the year 1997-98 due to economic unviability, the production at their factory was closed and later, almost 18 months after the stoppage of production, the said machines and other associated equipment were disposed of. The learned counsel argued that it is not disputed that the appellant had actually received and .....

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d till such time it was used/installed in their factory premises. 3. Learned AR relies on the impugned order. He relied on the decision of the Tribunal in the case of Bharat Bijlee Ltd. vs. CC, Mumbai 2014 (314) ELT 74, to assert that the goods imported under Project Import Regulations cannot be diverted. The learned AR also relied upon the decision of the Hon ble Apex Court in the case of CC, Mumbai vs. Toyo Engineering India Ltd. 2006 (201) ELT 513 (SC). 4. We have gone through the rival submi .....

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every component would be a herculean task wasting time of importer as well as Revenue. In these circumstances, chapter heading 98.01 has been introduced where the entire plant is classified under a single heading and charged to a single rate of duty. In the instant case, the appellant has clearly imported the goods for bona fide use and manufacture of the intended final product. They have installed machinery in their plant and put the equipment to use for more than two years. It is only when th .....

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is not disputed that the imported goods were used for the intended purpose for a period of over two years and thus the decision of the Tribunal in the case of Bharat Bijlee Ltd. (supra) is not applicable to the instant case. The learned AR also referred to the decision of the Hon ble Supreme Court in the case of CC, Mumbai vs. Toyo Engineering India Ltd. 2006 (201) ELT 513 (SC). In the said case, the apex court has observed as follows:- 12. It is not disputed that construction equipments importe .....

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nsion of an existing unit . This heading specifically mentions and includes auxiliary equipment . The auxiliary equipment has not been defined under the Tariff Act. As per Dictionary meaning, extracted above, it is an equipment which aids or helps. Any equipment which aids or helps in the setting up of an industrial plant would fall and be covered under Heading 98.01 of the Tariff Act. The mere possibility of its being used subsequently for other project would not debar the respondent from avail .....

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em of auxiliary equipment required for setting up of an initial unit on the ground that it was used only in shifting of the transformers which would not constitute an integral part of the power project. The vehicles imported were required for transportation of the transformers from railway yards to the erection sites and had no relation to power generation or power project. After transporting the specified number of transformers to the site of sub-station the utility of the vehicles would be ove .....

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