C.C. (EXPORT PROMOTION) Vs. KOATEX INFRASTRUCTURE LTD.

JUDGEMENT

(1.) THIS is an appeal filed by the Revenue against the adjudication Order dated 21 -8 -2007 passed by the Commissioner of Customs, Adjudication, Mumbai.

(2.) The Revenue's appeal has only one Respondent, Kotex Infrastructure Limited. We have heard the Learned SDR and Shri Sujay Kantawala, Learned Counsel appearing on behalf of the Respondent at length. After the conclusion of the hearing, which was held extensively over a span of two consecutive days, both sides were given liberty to file written submissions. They have not availed of the opportunity. So, the matter is left to be decided on the basis of the documents produced during the course of the hearing and the submissions made in open court during the days of hearing before us. Gujarat Pipavav Port Ltd. (GPPL) conceived a ship -breaking project for the port of Pipavav and applied for funding from Overseas Economic Cooperation Fund (OECF) of Japan, which was granted. A Consortium/agreement dated 31 -3 -1997 was made between KOATEX INFRASTRUCTURE LDT. (KIL) and M/s. Chiyoda Corporation, Japan, in terms of which KIL was to act as leader of the Consortium for the Pipavav Port Ship Breaking Project planned by Gujarat Pipavav Port Ltd. (GPPL). There was another Consortium Agreement dated 12 -6 -1997, which was not produced before the investigating officers, though repeatedly asked for. Vide Addendum dated 15 -12 -1997 to this agreement dated 12 -6 -1997, the scope of the work was redefined and KIL was entrusted the responsibility of modification/addition/alteration/assembly/fabrication of the offshore procurement to suit the project authority. Chiyoda Corporation undertook to pay KIL JY 130,000,000/ - for the service to be done in India on their behalf. It was also mentioned that the work to be done in India would be deemed to be complete to that extent. The amending Agreement dated 15 -12 -1997 was signed on behalf of KIL by Shri N. Ravichandran. This has been admitted by him in his statement dated 24 -9 -2004.

(3.) THERE was a separate Disclaimer and Indemnity Agreement in 1997 between GPPL and M/s. Chiyoda Corporation, according to which, the responsibility of M/s. Chiyoda Corporation was restricted to the offshore procurement only and GPPL waived its right to claim M/s. Chiyoda Corporation to perform or to undertake any liability for any part of the work (to be undertaken or performed by KIL) other than the offshore procurement as per clause 2 of the Agreement, whereas vide clause 5 of the Agreement, GPPL took a guarantee of KIL's responsibilities and liabilities under the Disclaimer and Indemnity Agreement towards Chiyoda and L&T Chiyoda (LTC). The agreement was signed on behalf of GPPL by Shri Nikhil Gandhi, VC & MD of GPPL. Vide MOU dated 1 -10 -1999 M/s. Pipavav Ship Dismantling & Engineering Ltd. (PSEL) took over the liabilities of GPPL under the said Disclaimer and Indemnity Agreement w.e.f. 31 -7 -1998. This MOU was signed by Shri Honnavar, the MD of PSEL.