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2016 (11) TMI 757 - CESTAT MUMBAI

2016 (11) TMI 757 - CESTAT MUMBAI - TMI - Project import - limitation bar - Held that: - L&T Ltd. had preferred an appeal against the confirmation of less charge demand before the first appellate authority beyond the period of 90 days from the date of receipt of the order-in-original by them. As per Section 128 of the Customs act, the first appellate authority has no power to condone the delay beyond the period of 30 days, on expiry of 60 days time granted for filing the appeal. In the case in h .....

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uthorities as the project was registered with the authorities by L&T Ltd. under the Project Regulations and L&T Ltd. gave an undertaking to file all the reconciliation of material consequent to execution of the project. At no stage of the entire proceedings, FIL was a party to the proceedings nor any demands were raised against them, nor any explanation was called from them in order to contest the issue on merits. By virtue of being the beneficiary of the project which was executed by L&T Ltd., .....

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s are directed against order-in-appeal No. 595 & 596/2004-MCH dated 7.10.2004. 2. Appeal No. C/1203/04 is filed by Finolex Industries Ltd. and appeal No. C/1204/04 is filed by Larsen & Toubro Ltd. The relevant facts that arise for consideration, after filtering out unnecessary details, are Finolex Industries Ltd. (hereinafter referred to as FIL) had sought the permission of the authorities for fabrication of storage tanks for storing ethylene for utilizing the same in their plant in Ratn .....

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of the assessment. The adjudicating authority caused plant site verification of the usage of the raw materials and components imported under Project Import. It was reported by the central excise authorities from Ratnagiri that the capital goods manufactured out of raw materials and components imported under Project Import have not been utilized by FIL; leased out both the storage tanks to BPCL for storage of LPG. In view of the discrepancy, a demand notice was issued to the importer, L&T Lt .....

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f storage tanks from the imported goods and has been completed. The adjudicating authority did not agree with the contentions raised and held that L&T Ltd. has not been able to prove that the nickel plates which were imported were utilized for substantial expansion of project of FIL and hence held the goods were not eligible for concessional rate of duty and confirmed the demands raised directing L&T Ltd. to pay the demands raised. Copy of the said order was endorsed to FIL. FIL as well .....

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hand and the documents. It is his submission that the imports were made with an intention to use the storage tanks for the purpose of increasing the production and in fact the said storage tanks were designed, fabricated and erected for storing ethylene near the jetty, but due to subsequent developments, they could not utilize the tanks for storage of ethylene and leased out the said tanks to BPCL for storing of LPG, without parting with the ownership; they had imported nickel steel plates whic .....

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l expansion (reliance placed on State of Haryana vs. Dalmia Dadri Cement Ltd. 2004 (178) ELT 13 (SC)). In view of the legal position and coupled with the factual position, there was an intention of FIL to expand the PVC plant and hence there is no violation of whatsoever nature of heading 98.01 or any provisions of Project Import Regulations, 1986. It is his further submission that there is no time limit specified for achieving substantial expansion and the appellant has already achieved substan .....

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led by L&T Ltd., it is his submission that the appeal has been dismissed by the first appellate authority on the ground of limitation. 4. Learned Commissioner (AR) submits that the entire appeal of FIL needs to be dismissed as there is no demands raised on FIL. It is his submission that in the entire case before the adjudicating authority, L&T Ltd. was the importer and duty was demanded from them only and not from FIL. It is his submission that the first appellate authority has dismissed .....

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the dispute as there is no demand raised against them and bond as well as the bank guarantee were executed by L&T Ltd. and the detention notice for non-payment of duty was also issued against L&T Ltd. On merits, it is his submission that the goods which were imported were not required for substantial expansion of installed capacity inasmuch that the said goods were for fabrication of storage tanks and various statements recorded of the officials of FIL clearly brings out that enhancemen .....

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with a bank guarantee for the completion of the project as registered. It is also on record that L&T Ltd. filed the reconciliation statements with the authorities on completion of the said project and which on verification found that the imported goods were not used for the project which was registered, as the said tanks were leased out by FIL to BPCL. The adjudicating authority confirmed the demands raised on L&T Ltd. 7. On perusal of the entire records, we find that L&T Ltd. had p .....

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