TMI Blog2024 (5) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... certified as being in favour of the importer by the competent authority, been questioned in the order. The threshold eligibility is, thus, beyond controverting. There is no doubt that the goods were not used for the intended project which, for whatever reason and not relevant in determining the consequences of non-utilization, is certainly cause for triggering duty liability should the notification so warrant. There is also no controverting of the submission of the appellant that the goods were not used on any project let alone on any ineligible road project. The notification stipulates that the goods cannot to be used for any ineligible activity during the lock in period. The goods were, in accordance with the notification, locked in till December 2015 which happened to be truncated with effect from October 2011, barely a year into the lock in period, and by premature action in the part of customs authorities. The hasty conclusion that contract cancellation did trigger the foreclosure of entitlement under the notification is not supported by the terms and conditions of the notification. The seizure and subsequent forced debarment from use, even within the scope of the relaxation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el, and the evaluation of facts in the impugned order being at variance, it behoves us to recall the chronology of events leading to seizure, ostensibly for breach of condition in exemption notification by retention of the goods at the Mumbai premises of importer. It is admitted that, upon clearance, the machinery was shifted to the premises to await clearance for commencement of the contractual undertaking which, however, did not, then or even later, occur owing to civil disturbances attributed to Maoist activity in the intended project area. Subsequently, on 8th July 2011, the contract was terminated and dispute resolution, under the terms of the contract, initiated when customs authorities seized the goods on 4th October 2011. Admittedly, the impugned goods were never deployed on the intended project and notice issued, for recovery and detriments under Customs Act, 1962, on 30th March 2012 which the original authority, in order of 21st October 2013 and disregarding their plea for benefit of depreciation in computation of duty liability, held to be sufficient for confirmation of liability and detriment supra. 3. It is contended by Learned Counsel for appellant that the goods had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the respondent range from ineligibility of constituent of joint venture to avail benefit of notification intended for awardee of contract in eligible projects which only the joint venture was, strict construction enjoined by the decision in re Dilip Kumar precluding benefit from being availed of by subcontractor to non-use in intended project or diversion for use in ineligible project. The fitment of the factual matrix of those disputes within the framework of the present dispute has not been brought out except by reference to alleged intent and circumstantial suspicion about motives of the appellant which have been elaborately narrated in the impugned order. That, however, is of no concern in a dispute emanating from claim for eligibility to a particular notification granting concession in import duties. The backdrop to this facility from the Central Government has been set out thus 10. For some unfathomable reason, this particular exemption, notified in acknowledgement of the importance of the liberalized policy of the Government of India for execution of road infrastructure development projects through private entities by resort to multifarious business models, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o disentitle of the entity that derived the advantage of the exemption at the threshold. Indeed, it would appear that, with the insistence on retention and utilisation, the safeguard of public interest distinguishes the eligibility at the threshold from the continuing eligibility thereafter. The two conditions are, thus, to be enforced separately and distinctly. Hence, it can be concluded that the scheme of exemption is not intended for exclusive use in contracts furnished as evidence of entitlement to the exemption. In the present dispute, the eligibility at the threshold, arising from the agreement with the National Highways Authority of India whose genuineness is not controverted, cannot be denied notwithstanding the subsequent breakdown of the engagement. 13. With the dichotomy of entitlement at the threshold, which stipulates contract with the designated department, authority or instrumentality, and of continued use, restricted only to possession and utilisation exclusively on roads construction without reference to the designated department, authority or instrumentality, utilisation for any kind of road construction would suffice to meet the commercial objective of optimum ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The threshold eligibility is, thus, beyond controverting. 8. There is no doubt that the goods were not used for the intended project which, for whatever reason and not relevant in determining the consequences of non-utilization, is certainly cause for triggering duty liability should the notification so warrant. There is also no controverting of the submission of the appellant that the goods were not used on any project let alone on any ineligible road project. The notification stipulates that the goods cannot to be used for any ineligible activity during the lock in period. The goods were, in accordance with the notification, locked in till December 2015 which happened to be truncated with effect from October 2011, barely a year into the lock in period, and by premature action in the part of customs authorities. The hasty conclusion that contract cancellation did trigger the foreclosure of entitlement under the notification is not supported by the terms and conditions of the notification. The seizure and subsequent forced debarment from use, even within the scope of the relaxation extended by amendments, effectively interfered with the free run intended in the notification wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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