Apca Power Private Limited Vs C.C.-Kandla (CESTAT Ahmedabad)
CESTAT Ahmedabad held that department cannot self assign to itself the duty of declaring bad in law the certificate issued to the importer by Ministry of Renewable Energy or decide title of the goods, even when no one is disputing ownership.
Facts- The appellant filed a bill of entry and claimed exemption vide Notification No. 01/20-Cus dated 06.01.2011 applicable to all items of machinery and apparatus required for setting up a solar power generation project when imported into India. The relevant certificate claim exemption from the Ministry of New and Renewable Energy was duly produced to claim such exemption. Department, however, made investigations against them on the ground that a certificate was obtained and an exemption claimed. Even when they were not owners of the goods, and the High Sea Sale Agreement was shown just for the sake of exemption.
Department was of the view that the High Seas Sale Agreement was not genuine, and it undertook an investigation by recording various statements to show that the exemption had been wrongfully claimed. Whereas the underlying EPC contract provided that it was the duty of M/s PESL to procure all the equipment and to pay customs duty.
Conclusion- It is thus abundantly clear that department cannot self assign to itself the duty of declaring bad in law the certificate issued to the importer by Ministry of Renewable Energy or decide title of the goods, even when no one is disputing ownership.
It is clear from the observation that between the person causing the import or the owner, the choice of filing Bill of Entry has to be exercised by coming forward and filing Bill of Entry and once that exercise is done, then no one can subsequently resile from the consequences, which flow from such choice/election. We, therefore, find that terming of import as improper, even when there is no contest to the ownership, and the person claiming to be importer continues to hold himself as an importer and the Ministry issuing certificate continues to treat the appellant as the importer, is not maintainable.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The appellant filed Bill of Entry and claimed exemption vide Notification No. 01/20-Cus dated 06.01.2011 applicable to all items of Machinery apparatus required for setting up of a Solar Power Generation Project, when imported into India. The relevant certificate to claim exemption from Ministry of New and Renewable Energy was duly produced to claim such exemption. Department, however made investigations against them on the ground that certificate was obtained and exemption claimed. Even when they were not owners of the goods and High Sea Sale Agreement were shown just for the sake of exemption. Whereas there were already underlying but unexecuted agreements entered into between M/s. Photon Energy Systems Ltd. (Hyd.), (hereinafter referred as “M/s. PESL”) and with M/s. Megha Engineering and Infrastructures Limited, Hyderabad(hereinafter referred to as“M/s. MEIL”).Department, therefore, was of the view that High Sea Sale Agreement were not genuine and it under took investigation by recording various statements to show that the exemption has been wrongfully claimed, whereas the underlying EPC contract provided that it was duty of M/s PESL to procure all the equipment and to pay customs duty. In the impugned order the Ld. Commissioner holding that the term `importer’ under Section 2(26) in relation to any goods at any time between their importation and their clearance from home consumption, includes any owner or any person holding himself to be importer found that M/s. APCA is not but M/s. MEIL, being owner of the goods, the real importer. The learned Adjudicating Authority also held that High Sea Agreement of were not genuine agreements and therefore APCA was not the owner and also not the importer and therefore wrongly claimed an exemption, which was meant for importer. The Learned AR vehemently put forth his arguments and submitted that Section 2 (26) permitted them to see and adjudge who the real owner was and because High Sea Sales Agreement were improper, therefore, M/s MEIL being a real owner was the importer, even as per section 2(26)and only they could have claimed exemption by producing relevant documents from the concerned Ministry.
2. As against this, the Advocate for the appellant argued that for the purpose of Section 2(26) of the Customs Act, 1962 the importer is one who holds himself as an importer for the purposes of importation by filing Bill of Entry etc., and that department has not brought anything on record that certificate produced by them from the Ministry of New & Renewable Energy was at any stage withdrawn or got cancelled by it. That in the absence of any claim by anyone of being an owner in the transaction, department is precluded from itself determining ownership for the purposes of Sec. 2(26). That department correctly held them to be the importer before the goods were cleared for home consumption on the basis of their holding themselves as importer by filing documents like Bill Of Entry and had correctly given benefit of exemption notification on the basis of a proper certificate issued in their name as `importer’. He relied upon the following case law:-
