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.