TMI Blog2023 (5) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... each of post import condition in the present instance. It is a fact that there is no claim to the contrary in this matter by M/s. MEIL or PESL, that they were the owners of the goods and hence importer. Department has of its own after clearance of the goods gone on to say that High Sea Sales Agreement being in genuine, the persons whoheld out himself as an importer is not so. The department it appears is proceeding on incorrect basis that only owner alone can be importer for Sec2(26) and not the person holding itself as an importer. Once this notion is discarded and person holding itself as an importer taken as included in purview of Section 2(26), all high sea sales agreement or their authenticity is relegated to irrelevance. Further, there being no dispute to the title of the goods or claim to the contrary, rather shows that there was consensus or not disagreement between the parties, which clearly points out that everything actually happened with some understanding or agreement, oral or otherwise. It is clear from the observation that between the person causing the import or the owner, the choice of filing Bill of Entry has to be exercised by coming forward and filing Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 applicable to all items of Machinery apparatus required for setting up of a Solar Power Generation Project, when imported into India. The relevant certificate to claim exemption from Ministry of New and Renewable Energy was duly produced to claim such exemption. Department, however made investigations against them on the ground that certificate was obtained and exemption claimed. Even when they were not owners of the goods and High Sea Sale Agreement were shown just for the sake of exemption. Whereas there were already underlying but unexecuted agreements entered into between M/s. Photon Energy Systems Ltd. (Hyd.), (hereinafter referred as M/s. PESL ) and with M/s. Megha Engineering and Infrastructures Limited, Hyderabad (hereinafter referred to as M/s. MEIL ). Department, therefore, was of the view that High Sea Sale Agreement were not genuine and it under took investigation by recording various statements to show that the exemption has been wrongfully claimed, whereas the underlying EPC contract provided that it was duty of M/s PESL to procure all the equipment and to pay customs duty. In the impugned order the Ld. Commissioner holding that the term 'importer under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Vs. Assistant Commissioner of Customs, Tuticorin-2020 (374) ELT 186 (Mad.) Giriraj Renewables Pvt. Ltd-2018 (17) GSTL 156 (App. AAR-GST) 4. We find that the issue is basically related to interpretation of Section 2(26) and its scope. Department has contended that under High Sale Agreements ownership was not transferred and therefore M/s APCA was never an owner for the imported goods. We find that, in the course of the findings of the Commissioner there has been no discussion as to whether the person who holds himself as importer and whom the Ministry Of Renewable Energy also accepted as an importer can at the time of import, be prevented from availing benefit of Exemption Notification No. 01/2011-Cus., dated 06.01.2011 which is reproduced below:- Solar power generation projects Exemption to all instruments etc. for setting up In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), and in supersession of the notification of the government of India in the Ministry of Finance (Department of Revenue ) No. 30/2010-Customs, dated 27th Feb. 2010, the Central Government on being satisfied that it is necessary in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this matter by M/s. MEIL or PESL, that they were the owners of the goods and hence importer. Department has of its own after clearance of the goods gone on to say that High Sea Sales Agreement being in genuine, the persons whoheld out himself as an importer is not so. The department it appears is proceeding on incorrect basis that only owner alone can be importer for Sec2(26) and not the person holding itself as an importer. Once this notion is discarded and person holding itself as an importer taken as included in purview of Section 2(26), all high sea sales agreement or their authenticity is relegated to irrelevance. Further, there being no dispute to the title of the goods or claim to the contrary, rather shows that there was consensus or not disagreement between the parties, which clearly points out that everything actually happened with some understanding or agreement, oral or otherwise. Despite this, department has still decided to investigate ownership. Regarding the case law relied upon by the learned AR, we find that the matter reported in 2009 (235) ELT 587 (S.C) i.e. Commissioner of Customs (Prev) Vs. Aafloat Textiles (I) P. Ltd was considering the forged Sale licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption either to the person causing the import, owner of the goods or any other person holding himself out to be the owner to come forward and file the Bill of Entry as an importer. One of the three having elected to become the importer, such a person cannot subsequently resile from the consequences which flow from such an election. It appears that insofar as courier imports are concerned it is the courier which held itself out to be the importer and filed a bill of entry seeking clearance of the goods. If there was any misdeclaration of value, the only course of option available to the Revenue was to raise a demand, if any, against the courier. Even under the Courier Import (Clearance) Regulations, 1995, which have been relied upon by Member (Technical) it is the authorised courier who is required to file a bill of entry seeking clearance of the goods imported by it. The consignee or the CHA on its behalf can only with the concurrence of the courier file a bill of entry in the prescribed form seeking clearance of the goods. There is absolutely no evidence which would even suggest let later alone establish that either the appellant or the CHA on its behalf, had with the concurrenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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