Cus - Notfn. 21/2002 - Electronic paver finisher for laying pavement 7m size and above - whether it is capacity of machine to lay pavement 7m size width that determines exemption or whether it should be machine that should have width 7m size - matter goes to LB: CESTAT

Cus - Notfn. 21/2002 - Electronic paver finisher for laying pavement 7m size and above - whether it is capacity of machine to lay pavement 7m size width that determines exemption or whether it should be machine that should have width 7m size - matter goes to LB: CESTAT




MUMBAI, AUG 22, 2013: THIS is a Revenue appeal.

The respondents imported "Electronic Sensor Pavers" for laying Bituminous Pavement of 9.5 mtrs and claimed the benefit under Notification No.21/2002-Cus (Sr. No.230, item 2 of the List 18).

The said entry reads -

Table

S. No.

Chapter or Heading or sub -heading

Description of goods

Standard rate

Additional duty rate

Condition No.

(1)

(2)

(3)

(4)

(5)

(6)

230.

84 or any other Chapter

Goods specified in List 18 required for construction of roads

Nil

Nil

40

List 18 (See S. No. 230 of the Table)

(2) Electronic paver finisher (with sensor device) for laying bituminous pavement 7 m size and above

The question is about the length - it always is! - whether the paver finisher should be 7m size and above or whether the pavement should be 7 m and above.

The Commissioner of Customs (Import), Mumbai denied the benefit of the above cited Notification to the respondents on the premise that the width of the machine is upto 6 mtrsonly, therefore, they are not entitled for the benefit of Notification as per List 18, item No.2. This was the observation made - that as per the notification, the exemption is for pavers for laying pavements of 7 meter size and above, the machine itself cannot lay pavement more than 6 meter, therefore, they are not entitled for the benefit of the said Notification.

The Commissioner (A) took a contrary view. He held that the `length' relates the size of the pavement inasmuch as the machine/pavers should be able to lay pavements of size 7 mtrsand above. Since as per the catalogue brought out by the manufacturer of the machines showed that these machines can lay Bituminous pavement upto 10 mtrs the Commissioner(A) allowed the appeal of the importer.

Now, Revenue is aggrieved and has filed an appeal before the CESTAT.

The Revenue representative submitted that in an identical issue in the case of M/s Gammon India Ltd, - (2013-TIOL-471-CESTAT-MUM) the Bench had held that "as the width of the equipment is only 6 meters but Notification says that Electronic Sensor Paver of 7 meters and above is entitled for exemption, therefore, these machines are not entitled for exemption under the above said Notification."

In view of the same, the AR prayed that the OIA be set aside and Revenue appeals be allowed.

The respondent opposed the contention of the AR and submitted that while examining the issue, the Tribunal had not interpreted Sl. 2 of List 18 correctly as the Electronic Senor Paver for laying bituminous pavements upto 7 meters and above which means that the Electronic Sensor Paver should be capable to lay down pavements more than 7 meters size and above, it is not concerned with width of the machine, the only concern is the capacity of laying of pavement of the machine. And, therefore, the matter be referred to the Larger Bench.

The Bench dismissed the Stay petitions filed by the Revenue and further observed -

"8. We have gone through the provisions of exemption Notification and as per Sl.2 to the List 18 which is applicable to this matter is reproduced here-in-under:-

1……………………….

2. Electronic paver finisher (with sensor device) for laying bituminous pavement 7m size and above.

3………………….

9. As per the above said list 18, Item No.2, Electronic paver finisher for laying bituminous pavement 7 meter and above. Therefore, in true spirit as observed by us that the Electronic paver imported by the respondents are entitled for exemption or not?

10. As per the notification it is not the machine which is having width of 7 meters and above but the capacity of the machine whether the machine is able to lay down pavement of 7 meters and above or not. The catalogue which is produced by the respondents clearly shows that maximum pave width is 10 meters. Therefore, in our opinion, the respondents are entitled for the benefit of the above said Notification.

11. As there is a different view taken by the Coordinate Bench of this Tribunal in the case of Gammon India Ltd. (supra), therefore it would be in the interest of justice to refer the matter to the Larger Bench of this Tribunal to decide the following issue:-

Whether the machine imported by the respondents i.e. "Electronic Sensor Pavers Vogele - Model Super 1800-2 with AB 600-2 TV Screed of working width upto 9.5 meters for laying Bituminous Pavement" is entitled for exemption under Notification No. 21/2002-Cus dated 01.03.2002, Sr. No. 230 (Sl. No.2 of List 18) or not."

In fine, the Registry was directed to place the files before the CESTAT President to refer the matter to the Larger Bench to decide the issue.