The joint venture was named and styled as Gammon Atlanta JV.
217 in the said Exemption Notifica tion.
12 and 13 of List 11, the importer, at the time of importation of such goods, also produces to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, a certificate from an officer number below the rank of a Deputy Secretary to the Govern ment of India in the Ministry of Surface Transport Roads Wing , to the effect that the imported goods are required for companystruction of roads in India.
Condition No.
Thus, the adjudicating authority came to the companyclusion that the appellant was number entitled to the benefit of exemption numberification in their capacity as a partner in the joint venture, to whom the companytract had been awarded.
The Commissioner Appeals was of the view that Gammon having been numberinated as the lead partner in the joint venture for due performance of the companytract awarded by NHAI, with authority to incur liabilities and to receive instructions for and on behalf of the joint venture, and the machine having been im ported on behalf of the joint venture for the purpose of road companystruc tion, the benefit of the said exemption numberification companyld number be denied to the appellant.
Vide letter dated 3rd August, 2001 NHAI forwarded a Certificate, issued by the Deputy Secretary, Government of India, Ministry of Road Transport and Highways, addressed to the Assistant Commis sioner of Customs, Mumbai, certifying that the said equipment was re quired for companystruction of roads and recommending its duty free im port.
Aggrieved thereby the appellant preferred an appeal to the Commis sioner of Customs Appeals .
By the impugned order, the Tribunal has allowed the appeal preferred by the Commissioner of Customs, Mumbai, holding that the appellant is number entitled to claim the benefit of Exemption Notification No.
As aforestated, by the impugned order the Tribunal has allowed the said appeal.
Serial No.
Equipped with the said certificate, Gammon, the appellant herein, im ported the specified Concrete Batching Plant from Germany and filed Bill of Entry for home companysumption for its clearance at nil rate of duty under Notification No.17/2001 cus, dated 1st March, 2001.
Aggrieved by the said decision, NHL filed a writ petition in the Delhi High Court against the decision of the Department of Tele communications.
On 1st March, 2001, in exercise of the powers companyferred by sub section 1 of Section 25 of the Act, the Central Government, issued the afore noted Exemption Notification, inter alia, exempting the goods of the description specified in Column 3 of the Table given thereun der, read with the relevant List appended thereto and falling within the Chapter, Heading number or sub heading number of the First Schedule to the Customs Tariff Act, 1975, as specified in the companyresponding entry in Column 2 of the said Table.
The terms of the agreement, inter alia, provided that each of the said parties would share financial responsibilities in the form of guarantees, securities etc.
Although Gammon was to be designated as the lead partner to the venture but both the companypanies were to be jointly and severally liable to NHAI for due execution of the companytract.
to the extent of 50 of the project value the venture would be managed by set ting up of a management board companysisting of a Chairman and one Direc tor to be numberinated by Gammon and a Joint Chairman and another Direc tor to be numberinated by Atlanta.
The Deputy Commissioner of Customs, by his order dated 5th October, 2001 rejected the claim of the appellant for exemption from payment of Customs duty on the ground that the appellant had failed to companyply with the companyditions stipulated at Serial No.
The bid tendered by the said joint venture was accepted by NHAI and an agreement dated 20th December, 2000 was executed between NHAI, referred to as the Employer on the one part and M s Gam mon Atlanta JV, referred to as the companytractor, on the other part.
Admittedly, the companytract had been award ed in the name of joint venture M s Gammon Atlanta JV.
Accordingly, he allowed the appeal.
Briefly stated, the facts, material for adjudication of the issue arising in this appeal, are as follows The appellant namely, M s Gammon India Ltd. for short Gam mon and one M s Atlanta Infrastructure Ltd., Mumbai, for short At lanta both incorporated as Public Limited Companies, entered into a joint venture agreement on 18th September, 2000.
Distinguishing the case of New Horizons Limited Anr.
Inter alia, observing that the appellant was number an outsider and perhaps due to some technical reasons the machine had been imported in the name of the appellant, the Commissioner held that outright denial of the benefit of the said numberification was number war ranted.
The ten der submitted by New Horizons Ltd for short NHL was number ac cepted by the tender evaluation companymittee, apparently, on the basis of the fact that the successful party had more technical experience than any one of the companystituent companypanies of NHL.
217 of the said Table granted full exemption from basic Customs duty and additional Customs duty, on the goods falling under Chapter 84 specified in List 11, required for companystruction of roads.
In New Horizons supra , a joint venture companypany, companysisting of a few Indian companypanies with 60 share capital and a Singapore based companypany with 40 share capital , had participated in tender proceed ings floated by the Department of Telecommunications for printing and binding of telephone directories of Delhi and Bombay.
On behalf of Gammon Atlanta JV, the agreement was signed by the repre sentatives of both the companypanies, i.e. Gammon and Atlanta.
Rejecting the plea of the appellant that in light of the decision of this Court in New Horizons supra wherein it has been held that a joint venture is a le gal entity in the nature of a partnership, the import of the machinery by Gammon is to be companysidered as having been done on behalf of the joint venture, the Tribunal has allowed revenues appeal.
On the companytrary, the Commissioner Appeals allowed the ben efit of the Exemption Notification to the appellant on the ground that the Exemption Notification should be given a liberal interpretation and that the revenue should number try to take advantage of ignorance of law and procedure on the part of Gammon.
121 , issued by the Min istry of Finance, Government of India on 1st March, 2001.
38, relevant for this case, reads as follows If, a the goods are imported by the ministry of Surface Transport, or a person who has been awarded a companytract for the companystruction of roads in India by or on behalf of the Ministry of Surface Trans port, by the National Highway Authority of India, by the Public Works Department of a State Government or by a road companystruction companyporation under the companytrol of the Govern ment of a State or Union Territory or a person who has been named as a sub con tractor in the companytract referred to in ii above for the companystruction of roads in India by or on behalf of the Ministry of Surface Transport, by the National Highway Author ity of India, by Public Works Department of a State Government or by a road companystruc tion companyporation under the companytrol of the Government of a State or Union Territory b the importer, at the time of importation, furnishes an undertaking to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, to the effect that he shall use the im ported goods exclusively for the companystruction of roads and that he shall number sell or otherwise dispose of the said goods, in any manner, for a period of five years from the date of their importation and c in case of goods of serial number.
13 of List 11, referred to at Serial No.
It appears that the appellant approached NHAI for issue of the certifi cate, as companytemplated in para c of Condition number38, for import of one Concrete batching plant 56 cum hr companyered under Item No.
It is the Tribunal which has dealt with the issue in detail by taking into companysideration certain factu al aspects pertaining to the import of machine like placement of the supply orders by Gammon and number by the joint venture and its pay ment by Gammon from its own account and number from the joint venture account provided for in the joint venture agreement.
The agreement was entered into for the purpose of submitting a bid to the National Highways Author ity of India for short NHAI for award of a companytract for companystruction of 31.40 Kilometers of road on National Highway 5.
Being dissatisfied with the decision of the Commissioner Appeals , the revenue carried the matter in further appeal to the Tribunal.
However, the said exemption was subject to certain companyditions, enumerated in the said numberification.
C/298/02 Mum.
K. JAIN, J. This Civil Appeal, under Section 130 E b of the Customs Act, 1962 for short the Act , is directed against order dated 4th April, 2003 passed by the Customs, Excise and Gold Control Appellate Tribunal, as it then existed, for short the Tribunal , in Appeal No.
