9911796707
TMI Blog2024 (9) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... are as under: 2.1 The petitioner, who is a Private Limited Company, is engaged in the business of construction of roads. The petitioner had imported four road construction machineries i.e. "Motorgarder CASE Model 865B" on high sea sale basis from M/s. Case New Holland Construction Equipment (India) Private Limited for execution of the World Bank Aided project approved by the Government of India and implemented by the State of Gujarat. 2.2 Import of the goods to be used for World Bank aided projects was exempt from custom duty by virtue of Notification No. 84/97-Customs dated 11.11.1997 issued by the Government Of India. As per the terms of the said notification, certification by the concerned State Government as the goods were required for use in execution of the eligible project was required. 2.3 The petitioner therefore applied to the Government of Gujarat on 31.05.2016 after five months prior to import for issuance of the project authority certificate which was required under the Notification No. 84/97 for importing road construction machinery disclosing the details of the petitioner as a Contractor and the machinery was required to be imported by the petitioner. 2.4 While c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.05.2020 giving complete details of the sequence of events and entitlement of the petitioner to the refund application. 2.10 As no response was received from the respondent-authority, the petitioner kept on sending the reminder. At last, it appears that the Refund Cell issued a letter dated 06.04.2022 conveying that refund was not being sanctioned on account of the fact that the reassessment of Bills of Entries had not been done. The petitioner was asked to approach the concerned authority. 2.11 The petitioner therefore, again requested the respondent-Custom authority by letter dated 14.09.2022 to process re-assessment of Bills of Entry. 2.12 The petitioner thereafter preferred this petition with a prayer to direct the respondent -authority to issue refund orders. 3. Learned advocate Mr. Uchit Seth submitted that non-grant of refund of custom duty paid under protest is illegal and arbitrary as it is not in dispute that the petitioner had applied for project authority certificate before importing goods required for the World Bank Aided Project before the Government of Gujarat and only because such certificate was issued belatedly, the petitioner cannot be denied exemption from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors (1980) 2 SCC 437 decided on 09.11.1979. 3.7 Reference was made to the decision of Soni India Pvt Ltd (supra) wherein, the decision in case of ITC Limited (supra) of the Hon'ble Supreme Court was relied upon to submit that the refund application under section 27 of the Act cannot be granted until and unless assessment order is modified and fresh order of assessment is passed and duty re-determined. However, Supreme Court nowhere said that such amendment or modification of assessment order can only be done in appeal under section 128 of the Act. Reference was made to para 47 of the decision of ITC Limited (supra) to submit that Supreme Court clearly indicated that modification of assessment order can be either under section 128 of the Act or other relevant provision of section 149 of the Act. It was therefore submitted that the respondent-authority can reassess Bills of Entry under section 149 of the Act to sanction the refund on the basis of the project authority certificate issued by the State of Gujarat granting benefit of the Notification No. 84/97. 4. On the other hand, learned AGP Mr. Chintan Dave and learned advocate Mr. Nikunt Raval appearing for the respective respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary in the public interest so to do, hereby exempts all the goods imported into India for execution of projects financed by the United Nations or an International Organisation and approved by the Government of India, from the whole of the duty of customs leviable thereon under First Schedule to the Customs Tariff Act, 1975 (51 of 1975), the whole of the additional duty of customs leviable thereon under section 3 of the said Customs Tariff Act and the whole of the special duty of customs leviable under section 68 of the Finance (No. 2) Act 1996 (33 of 1956): Provided that the importer, at the time of clearance of the goods, produces before the Assistant Commissioner of Customs or Deputy Commissioner of Customs, as the case may be, having jurisdiction, - (i) in case the said goods are - (a) Imported by an international organisation listed in the Annexure appended to this notification and intended to be used in a project that has been approved by the Government of India and financed (whether by a loan or a grant) by such an organisation, a certificate from such organisation that the said goods are required for the execution of the said project and that the said project has dul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stry in the Government of India, which has been so nominated with respect to a project, by the Government of India, in the Ministry of Finance (Department of Economic Affairs)." 7. On perusal of the above notification, more particularly, clause (iii) thereof, the petitioner is entitled to the exemption from payment of custom duty on import of the machinery used for the World Bank Aided project. Certificate issued by the State of Gujarat is also clearly specifies that the machinery has been used by the project is it approved by the World bank and given to the petitioner for construction for the road. The respondent authority therefore required to reassess the bills of based on the project authority certificate issued by the State of Gujarat sections 149 of the Customs Act reads as under: "149. Amendment of documents.-Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended: Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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