PNC INFRATECH LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is a public limited company involved in the business of construction and laying of roads and development of infrastructural projects. It has been awarded the project of laying access controlled expressway between Agra and Firozabad by the Uttar Pradesh Expressways Industrial Development Authority under the Government of Uttar Pradesh. For the said project, the petitioner caused import of one Electronic Sensor Paver of Vogele Model, Super 1800 -3 with AB -600 T.V. Screen, for which the petitioner filed Bill of Entry for clearance of the goods and sought for duty -exemption from basic customs duty and other duties under the Notification No. , dated 17 -3 -2012, read with Notification No. , dated 17 -2 -2014 in Sl. No. 368 -A. The third respondent -Assistant Commissioner of Customs raised queries as to the rejection of the exemption of duty and directed the petitioner to furnish the product catalogue and other import documents, for which the petitioner replied on 16 -2 -2015, justifying their claim for exemption by enclosing relevant document(s). By order dated 26 -2 -2015, the third respondent rejected the claim for exemption sought for by the petitioner under Order -in -Original No. 34374 of 2015. According to the third respondent, the duty exemption under Customs Notification No. , Sl. No. 368 -A is applicable only for Electronic Paver Finisher (with Sensor Device) for laying bituminous pavement of 7m. size and above. The third respondent found that the imported machinery is of standard width of "Screen", attached to the imported paver finisher of only 6m. The width larger beyond 6m. is created only through addition of bolt on extension manually up to a maximum of 9m. The third respondent followed the decision of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai in the case of Gammon India Ltd. v. Commissioner of Customs, reported in : 2013 (298) E.L.T. 740 (Tri. -Mumbai), to arrive at his conclusion and held that even though the import documents like invoice, etc., mentioned in the description of the goods as "Electronic Sensor Paver - -Vogele Model Super - -1800 -3 AB 600 T.V. Screen for laying bituminous pavement up to 9m. along with required accessories, the petitioner did not include the word "AB 600 T.V. Screen" to the description in the Bill of Entry and thus the petitioner was denied the benefit of the Notification No. , Sl. No. 368A and therefore, the third respondent worked out the actual duty therein and directed the petitioner to pay the differential duty.

(2.) AS against the above order of the third respondent -Assistant Commissioner of Customs, the petitioner preferred appeal under Section 128 of the Customs Act, before the second respondent -Commissioner of Customs (Appeals) on 13 -3 -2015 and the said appeal was registered. The petitioner paid 7.5% of the duty imposed as pre -deposit for entertainment of the appeal. As the goods have not been cleared, the petitioner was given preference for the hearing of the appeal, as the Bill of Entry had been alive. However, the second respondent -appellate authority is guided by the ruling of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, in the above said case of Gammon India Ltd., which was affirmed in the Larger Bench of the Tribunal in the case of Commissioner of Customs v. Ramky Infrastructure Limited, reported in : 2013 (296) E.L.T. 518 (Tri. -Mumbai).

(3.) THERE is a contra view in the case of Ramky Infrastructure Ltd., pertaining to the ratio of the Tribunal in Gammon India Ltd. Since there was conflicting decisions of the Tribunal, a Larger Bench was constituted, which upheld the view taken in Gammon India case. Thus, there are conflict of views as to whether the benefits of exemption could be granted to the petitioner or not. Whether the Notification is size -specific with respect to the equipment or whether the machine has the capacity to lay the pavement of 7m. and above or not, has to be considered in the appeal. It is admitted that the product catalogue submitted along with the import documents, clearly shows that the machine is capable of laying pavement of width of 10m. and the benefit of exemption pertaining to relevant Notification is available for the petitioner. The Larger Bench of the Tribunal construed the earlier Notification strictly, without giving room for any latitude and also not taking into account the object of the Notification in allowing the import at concession rate of duty in respect of the equipment imported for public purpose of laying of roads and highways. It is also specifically stated by the petitioner that the roads and construction thereof, are the sine -qua -non for the development and progress and are the hallmark of civilization, which is the dream of the policy makers and Constitutional functionaries.