TMI Blog2018 (6) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... ering Ltd. [2013 (12) TMI 1146 - CESTAT MUMBAI], where it was held that The department has rightly issued show-cause notice to the appellant for violation of condition of their undertaking and thereby for denying the exemption under N/N. 21/2002. Benefit rightly denied - appeal dismissed - decided against appellant. - Appeal Nos. C/152,153/2009 - Order No. A/86437-86438/2018 - Dated:- 17-5-2018 - Hon ble Mr. Ramesh Nair, Member ( Judicial ) And Hon ble Mr. Raju, Member ( Technical ) Shri Prashant Patankar, Advocate, for appellant Ms. P. Vinitha Sekhar, Joint Commissioner (AR), for respondent ORDER Per : Ramesh Nair Brief facts of the case are that the Appellant M/s. Venkata Rao Infra Projects Pvt. Ltd imported one Power Paver Finisher SF 3000 Slip Form claiming exemption from Custom duty in terms of serial no. 230 of Notification No. 21/2002 Cus dt. 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, Vishak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conditions of the notification. We find that the Appellant has used the machine only for 12 kms of road contract awarded by the NHAI and thereafter it was not used any of the projects as enumerated in the condition of the notification. The condition of the notification envisages as under : If,- (a) the goods are imported by (i) the Ministry of Surface Transport, or (ii) a person who has been awarded a contract 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 Government or by a road construction corporation under the control of the Government of a State or Union Territory; or (iii) a person who has been named as a sub-contractor in the contract referred to in (ii) above for the construction of roads in India by or on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said condition is reproduced as under :- (a) the goods are imported by - (i) . .. (ii) a person who has been awarded a Contract 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 State Govt. or by a road construction corporation under the control of the Govt. of a State or Union Territory; or (iii) a person who has been named as sub-contractor 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aver finisher and evaded by the importer M/s. Patel Engg. Ltd. should not be demanded and recovered under the proviso to Section 28(1) of the Customs Act, 1962 and also by enforcing the Bonds/undertakings executed by them at the time of import. 11. Another argument advanced by the ld. advocate is that the Notification did not contemplate actual use of the imported goods. Without going into this issue, it is a fact that the said paver finisher was found at the site of Nicco Corporation Ltd. and to ascertain the use of paver finisher, the statement of Shri Rajiv Nath, Sr. Manager Project Division was recorded and in his statement has submitted that M/s. Nicco Corporation Ltd. undertook engineering project or erection and commissioning of plant like gas plant, oil plant etc. M/s. ONGC has given a contract to M/s. Nicco Corporation Ltd. for construction of Pipe storage system with gantry crane and pipe stretching system including road culverts, site levelling works for model like Ligiri, Pukhari site, Assam. The aforesaid contract was for the period 27-3-2007 to 26-1-2008 and the contract work involves concretisation of the ground area of the entire depot and also erection of ga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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