COMMISSIONER OF CUSTOMS Vs. LUNA INFRAPROP PVT. LTD.

JUDGEMENT

(1.) THE relevant facts of the case, in brief, are that the Respondents entered into an agreement with M/s. Gama Infraprop Pvt. Ltd. (GIPL) for supply of certain equipments and materials for the power plant at Uttarakhand. GIPL is the project proponent decided to set up Power Plant at Udham Singh Nagar, Uttarakhand. The Respondent has been retained as EPC contractor through International Competition Bidding process, agreed to do erection, procurement and commissioning of the said plant. The Respondents imported a consignment described as Gas Turbine and Generator Unit & MSD Unit 1 & 2, Lubricants, Inlet Support/Steel Structure paid additional duty of customs (4% CVD) as per Section 3(5) of the Customs Tariff Act, 1975 at the time of importation. The goods were sold to M/s. GIPL.

(2.) The Respondents filed refund claim of 4% additional duty of Customs under the provision of Section 27 of the Customs Act, 1962 read with Notification No. 102/2007 -Cus, dt. 14.09.2007 as amended, vide their letter dt. 31.07.2012 as the imported goods were sold during the month of March 2012 to GIPL. The Adjudicating authority had sanctioned the refund claim. The Revenue filed appeal before the Commissioner (Appeals) against the Adjudication order on the ground that the refund was sanctioned in violation of condition of Notification No. 102/2007 -Cus (supra) as the Respondents had made the sale transactions only on paper. By the impugned order, the Commissioner (Appeals) rejected the appeal filed by the Revenue. Hence, the Revenue filed this appeal.

(3.) THE learned Counsel on behalf of the Respondent drew the attention of the Bench to the relevant portion of the agreement to establish that the Respondents passed the title of the goods to M/s. GIPL by raising invoices. He also placed the certificate issued by the Government of NCT of Delhi, Department of Trade & Taxes, New Delhi, certifying that the Respondents sold the goods to M/s. GIPL and paid CST. He further relied upon the various case laws and filed written submissions with compilation of case laws.