Exemption under Notification No.17/2001 cus, dated 1st March, 2001 available only if the goods are imported by ‘a person who has been awarded the contract’ by NHAI

M/s. Gammon India Ltd. Vs Commissioner of Customs (Supreme Court of India)- Customs – Exemption under notification no. 17/2001 Customs – Contract in the name of Joint Venture – Import of machine by one party to the joint venture – actual user condition – Appellant and ‘X’, entered into a joint venture agreement dt. 18.9.2000 for submitting a bid to the National Highways Authority of India (NHAI) for awarding a contract for construction of a road in India – The said joint venture was named as ‘Y’- The bid tendered by the ‘Y’ was accepted by NHAI and an agreement was executed between NHAI and ‘Y’- Subsequently, the Central Government issued exemption notification no. 17/2001-Cus., granting full exemption to the goods required for construction of roads – Appellant imported Concrete Batching Plant from Germany and filed Bill of Entry for its clearance at ‘nil’ rate of duty under notification no. 17/2001-Cus. – The Deputy Commissioner rejected said claim of the appellant and held that the exemption was available only if the goods were imported by a person who had been awarded the contract by NHAI for construction of roads in India by or on behalf of Ministry of Surface Transport, but in the instant case the goods have been imported by appellant to whom no contract had been awarded by the authorities – Commissioner allowed appeal filed against said order and held that as appellant had been nominated as the lead partner in the joint venture for due performance of the contract awarded by NHAI, with authority to incur liabilities and the machine having been imported on behalf of the joint venture for the purpose of road construction, the benefit of the said exemption notification could not be denied to the appellant – On appeal, Tribunal held that the benefit of exemption notification cannot be availed of by a joint venture because it was nothing more than an association of two persons, having no identity in law – Hence, the instant appeal – Whether import of the specified machine by appellant can be considered to be an import ‘by a person who has been awarded a contract for construction of the roads in India’, so as to fulfill condition laid down in exemption notification no. 17/2001-Cus.? – Held, though under agreement dt. 18.9.2000, appellant was notified as the lead partner but agreement executed between NHAI and ‘Y’ was signed by the representatives of both the companies meaning thereby that so far as NHAI was concerned, for them the contractor was ‘Y’ and not appellant or ‘X’ individually – Hence, import of Concrete batching plant by appellant cannot be considered as an import by ‘Y’ who had been awarded contract for construction of the roads in India and therefore, neither ‘Y’ nor appellant fulfill the requisite requirement stipulated in the Exemption Notification No. 17/2001-Cus. – Impugned decision of the Tribunal, holding that the appellant was not entitled to the benefit of Exemption notification No. 17/2001-Cus upheld – Appeal dismissed.

M/s. Gammon India Ltd. Vs Commissioner of Customs, Mumbai

Decided By – SUPREME COURT OF INDIA

Decided on – 6th July, 2011

Civil Appeal No. 5166 of 2003

Please become a Premium member. If you are already a Premium member, login here to access the full content.