Delhi International Airport Pvt. Ltd vs Cc, New Delhi

(Arising out of Order-in-Appeal No. CC(A) Cus/IVD/358/2009 dated 15.12.2009 passed by the Commissioner of Customs, (Appeals), New Delhi)

For Approval & Signature :

Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

Delhi International Airport Pvt. Ltd. Appellant

Vs.

CC, New Delhi Respondent

Appearance:

Shri Tarun Gulati, Advocate - for the Appellant

Shri Sparsh Bhargava, Advocate

Shri Amresh Jain, D.R. - for the Respondent

Coram : Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

F. Order No. 52217/2015

Per R.K. Singh :

Appeal has been filed against order-in-appeal dated 15.12.2009 which disallowed the classification of the imported goods under Chapter Heading 98.01.

2. The facts of the case are as under:

(i) The appellant was registered under Regulation 5 of the Project Imports Regulations, 1986 at the Commissionerate of Customs, (I&G), IGI, Airport, New Delhi. As a result of such registration, the goods imported for the IGI project as certified by the concerned Ministry were allowed to be classified under 98.01. In the present case the goods were imported at ICD, TKD.

(ii) The appellant filed 47 Bills of Entry for assessment of goods under CTH 98.01. The assessing officer disallowed the assessment under CTH 98.01 on the ground that the Release Advice from the Custom House where the project is registered as per proviso to Regulation 5 of Project Import Regulations, 1986 has not been produced. The Commissioner (Appeals) held that out of 47 Bills of Entry, appeals have been filed in time only in respect of seven of them. The Commissioner (Appeals) further observed that the appellant has admitted that it had failed to produce the Release Advice from the competent authority for getting the benefit under Chapter Heading 98.01 in terms of Project Import Regulation and therefore there was no infirmity in the assessments.

3. The appellant has contended that:

(i) It was entitled to Release Advice and that non-issuance of Release Advice in spite of application therefor was illegal.

(ii) The Commissioner (Appeals) should have directed the Revenue to issue the Release Advice and that Release Advice is only a procedural requirement as held by CESTAT in the case of Power Build Ltd. Vs. CCE, Mumbai  2003 (156) ELT 905 (Tri.-Mum.)

(iii) The impugned order in appeal had been issued without discussing the various grounds.

(iv) It had received the requisite essentiality certificate for the goods imported under the said 47 Bills of Entry from the Ministry of Civil Aviation which is the nodal ministry and that the customs was duty bound to allow benefit of project import on the basis of such essentiality certificate and classify goods under CTH 98.01.

(v) As regards the appeal filed in respect of certain Bills of Entry beyond the time limit it stated that the Commissioner (Appeals) should have condoned the delay.

It cited the judgement in the case of CC, Mumbai Vs. Tullow India Operations Ltd.  2005 (189) ELT 401 (SC), to the effect that essentially certificate would also approve that the item should be treated as capital goods.

4. The ld. DR, on the other hand, contended that the assessing officer had no basis or ground to assess goods under CTH 98.01 as Release Advice in terms of Regulation 5 of the Project Imports Regulations, 1986 was not produced.

5. We have considered the contentions of both sides. It is a fact that the appellant had not produced the Release Advice from the Custom House where the project was registered and therefore the assessing officer had no basis to classify the impugned goods under CTH 98.01 and so assessed the goods on merit. The Commissioner (Appeals) is thus totally justified in holding that the assessment was correctly done. We find that vide letters dated 19.10.2009 and 13.10.2009 the Assistant Commissioner of the Customs House where the project was registered had declined to issue the Release Advice for the impugned goods. These letters were never appealed against by the appellant. The judgement in the case of Power Build Ltd. Vs. CCE, Mumbai (supra) is cited by the appellant to press the point that issuance of Release Advice is only a procedural requirement. We find that even in that judgement the Honble CESTAT has clearly held that Release Advice is indication to the Customs House about availability of the entitlement to import in a particular license issued by the Custom House where licence is registered. Thus in the absence of any such indication, the assessing officer at the Customs House where goods were imported had no basis to grant the benefit of project import in respect of the said Bills of Entry. The judgement of Supreme Court in the case of Tullow India Operations Ltd. (supra) has clearly stated that it depends on the facts of each case and thus did not lay down any general principle/ratio.

6. In the light of the foregoing, we do not find any infirmity in the impugned order-in- appeal and therefore the appeal is rejected.

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

RM

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