9911796707
TMI Blog2018 (6) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.03.2002. During investigation it was found that initially the machine was used for construction of 12 kms road connecting Vishakpatnam Port Road and later was diverted for type of project not covered by the notification i.e laying of platform at Vishakaptanam Airport under contract with AAI, Vishakapatnam. Since the machine was not used for the purposes as notified under the conditions of the exemption the same was seized and provisionally released to the Appellant after payment of duty. They were issued show cause notice proposing denial of exemption supra, confiscation of machine in terms of proviso to Section 111 (o) of the Customs Act, 1962 on ground of violations of the conditions of the notification, demand of customs duty and appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act as there was no duty short levied or not levied at the time of assessment. It is only Post Import Violation of the condition. He relies upon the judgment of Hon'ble Supreme Court in case of Jagdish Cancer Care & Research Center 2001 (132) ELT 257 (SC). 3. Ms. Vinita Sekhar, ld. Joint Commissioner, AR appearing for the revenue submits that the impugned order has been rightly passed as the conditions of the Notifications were not followed. She has relied upon the Tribunal's order in case of Patel Engineering Ltd. 2013 (295) ELT 243 (TRI), Shreeji Construction 2014 (313) ELT 566 (TRI) and Hon'ble Supreme Court judgment in case of Gammon India Ltd. 2011 (269) ELT 289 (SC). 4. We have perused the facts of the case and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of their importation; and (c) in case of goods of serial no. 12 and 13 of List 18, 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), or an officer not below the rank of Chief Engineer of the National Highways Authority of India, to the effect that the imported goods are required for construction of roads in India. 5. We find that the imported machine was used for intended purpose of road only once for a small contract and after that period for construction of platform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractor in the contract referred to (ii) above for the construction of roads in India by or on behalf of the Ministry of Surface Transport, by the National Highway Authority of India, by the Public Works Department of a State Govt. or by a road construction corporation under the control of the Govt. of a State or Union Territory. (b) the importer, at the time of importation furnishes an undertaking to the Deputy Commissioner of Customs or the Asstt. Commissioner of Customs as the case may be, to the effect that he shall use 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 the period of five years from the date of the importation; and (c) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case it is clear cut relying by the adjudicating authority that there was no post-import contravention and that the impugned exemption has been correctly availed. Therefore, the said decision is not relevant to the facts of this case as in this case the show-cause notice has alleged that the appellant has not fulfilled the obligation undertook by the appellant by executing the bond to that effect. This fact has clarified in the show-cause notice itself in para 32.3 as under - "32.3 This act of the importer is in contravention to its undertaking filed by themselves at the time of import clearance before the customs authority in this regard, violating condition No. 40(b) of the Notification." Further, in para 35(b)(ii) the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng pipe by ONGC. The above mentioned total work in the contract, the later part i.e. engineering erection of rail, gantry crane bundle strip system, electric panel and compressor is being carried out by project division. The paver finisher was used for dry lean concrete for an area of 1200 sq.mtr. initially and thereafter another area of 8000 sq.mtr was also undertaken by said paver finisher. 12. From the statement of Rajiv Nath, we find that the paver finisher was used not for construction of road but for the construction of depot and platform for storage of pipes. 13. As per the condition of the Notification, the undertaking was given by the appellant at the time of import that the impugned paver finisher shall be used only and only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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