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Judgment
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.
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. A8 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, TKO.
(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.
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) EL T 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.
The Id. DR, on the other hand, contended that the assessing under CTH 98.01 as officer had no basis or ground to assess goods Release Advice in
terms of Regulation 5 of the Project Imports Regulations, 1986 was not produced.
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 Hon'ble CEST AT 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.
In the light of the foregoing, we do not find any infirmity in the impugned order-in- appeal and therefore the appeal is rejected.