COMMISSIONER OF CUSTOMS MUMBAI Vs. TOYO ENGINEERING INDIA LIMITED
LAWS(SC)-2006-8-66
SUPREME COURT OF INDIA
Decided on August 31,2006

COMMISSIONER OF CUSTOMS, MUMBAI Appellant
VERSUS
TOYO ENGINEERING INDIA LIMITED Respondents


Referred Judgements :-

PUNJAB STATE ELECTRICITY BOARD V. COLLECTOR OF CUSTOMS. BOMBAY [REFERRED TO]



Cited Judgements :-

SPIE CAPAG VS. UNION OF INDIA [LAWS(SC)-2008-3-52] [REFERRED TO]
COMMISSIONER OF INCOME TAX DELHI VS. INTERNATIONAL TRAVEL HOUSE LTD [LAWS(DLH)-2010-9-143] [REFERRED TO]
K SADASIVAM VS. SPECIAL DIRECTOR ENFORCEMENT DIRECTORATE [LAWS(MAD)-2010-6-28] [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH VS. M/S. SHITAL INTERNATIONAL [LAWS(SC)-2010-10-136] [REFERRED TO]
S.N. Simha VS. The State of Karnataka, Represented by its Secretary, Commerce and Industries Department, Vikasa Soudha, Dr. Ambedkar Veedhi, Bangalore - 560001 and others [LAWS(KAR)-2012-10-176] [REFERRED TO]
RENUKA PRASAD VS. COMMISSIONER OF CENTRAL EXCISE [LAWS(CAL)-2014-4-107] [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE CHANDIGARH VS. SHITAL INTERNATIONAL [LAWS(SC)-2010-10-101] [REFERRED TO]
COMMR. OF CUS., C. EX. AND S.T. VS. INDIAN FARMERS FERTILIZERS COOP. LTD [LAWS(ALL)-2014-7-120] [REFERRED TO]
SHREE CEMENT LTD. VS. STATE OF RAJASTHAN [LAWS(RAJ)-2011-10-57] [REFERRED TO]
COMMISSIONER OF INCOME TAX VS. CONTIMETERS ELECTRICALS PVT. LTD. [LAWS(DLH)-2008-12-116] [REFERRED TO]
S. JAMAL VS. COMMISSIONER OF CUSTOMS (AIR) [LAWS(MAD)-2013-12-124] [REFERRED TO]
LIFETIME INTEREXPO PVT. LTD. VS. UNION OF INDIA AND ORS. [LAWS(ALL)-2014-4-343] [REFERRED TO]
DELOITTE HASKINS & SELLS VS. COMMISSIONER OF C. EX. [LAWS(CE)-2015-1-145] [REFERRED TO]
SHYAM COLLEGE OF EDUCATION VS. NATIONAL COUNCIL FOR TEACHER EDUCATION AND ANR. [LAWS(DLH)-2010-8-393] [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE VS. CHAMPDANY INDUSTRIES LIMITED [LAWS(SC)-2009-9-10] [REFERRED TO]
COMMISSIONER CENTRAL EXCISE DELHI VS. ACE AUTO COMP LTD [LAWS(SC)-2010-12-38] [REFERRED TO]
SUNDERLAL SHRIVASTAVA VS. NATIONAL COUNCIL FOR THE TEACHERS EDUCATION [LAWS(MPH)-2012-4-99] [REFERRED]
INDIRA PRIYADARSHINI VS. STATE [LAWS(MPH)-2012-4-105] [REFERRED TO]
JETLITE (INDIA) LTD. VS. COMMISSIONER OF C.EX. [LAWS(CE)-2010-12-1] [REFERRED TO]
CLASSIC MARBLES VS. COMMISSIONER OF CENTRAL EXCISE, VAPI [LAWS(CE)-2012-12-7] [REFERRED TO]
P.C. CHAKRAVORTY VS. COMMISSIONER OF CUSTOMS (PORT), KOLKATA [LAWS(CE)-2008-7-168] [REFERRED TO]
PANCARD CLUBS LIMITED VS. SECURITIES AND EXCHANGE BOARD OF INDIA SEBI BHAVAN [LAWS(SB)-2014-9-3] [REFERRED TO]
DOW AGROSCIENCES INDIA PVT. LTD. VS. COMMISSIONER OF CUS., MUMBAI [LAWS(CE)-2011-5-61] [REFERRED TO]
VENUS WOOLLEN MILLS VS. COMMISSIONER OF INCOME TAX [LAWS(IT)-2014-9-17] [REFERRED TO]
OSWAL PAPER AND ALLIED INDUSTRIES VS. CCE [LAWS(CE)-2010-2-109] [REFERRED TO]
ULTRATECH CEMENT LTD. VS. COMMISSIONER OF C. EX. [LAWS(CE)-2010-12-60] [REFERRED TO]
ROTOMAC ELECTRICALS LTD. VS. UNION OF INDIA & ANR. [LAWS(DLH)-2016-11-7] [REFERRED TO]
SPIE CAPAG VS. UNION OF INDIA [LAWS(BOM)-2008-8-436] [REFERRED]
DR. BHIM RAO AMBEDKAR EDUCATIONAL SOCIETY THROUGH PRESIDENT VS. COMMISSIONER OF INCOME TAX (EXEMPTION) ASHOK MARG LKO. [LAWS(ALL)-2017-7-111] [REFERRED TO]
MAGMA SHARCHI FINANCE LTD VS. COMMISSIONER OF SERVICE TAX, KOLKATA [LAWS(CAL)-2017-7-118] [REFERRED TO]
BHARAT PETROLEUM CORPORATION LTD VS. UNION OF INDIA [LAWS(KER)-2018-1-50] [REFERRED TO]
ASSTT. COMMR. OF COMMERCIAL TAXES, ANTI VS. JYOTI LABORATORIES LTD. [LAWS(RAJ)-2017-7-234] [REFERRED TO]
JAMMU CASTING PVT. LTD. VS. UNION OF INDIA [LAWS(J&K)-2017-8-22] [REFERRED TO]
COMMISSIONER OF INCOME TAX VS. AMRITHA CYBER PARK (P) LTD [LAWS(KER)-2019-2-163] [REFERRED TO]
ULTRATECH CEMENT LTD. VS. STATE OF RAJASTHAN [LAWS(RAJ)-2019-1-103] [REFERRED TO]
FIRM NITIN KUMAR VS. KRISHI UPAJ MANDI SAMITI [LAWS(MPH)-2019-12-15] [REFERRED TO]
PRINCIPAL COMMISSIONER OF INCOME TAX VS. BRAVO SPONGE IRON (P) LTD. [LAWS(CAL)-2022-2-84] [REFERRED TO]
LANCE NAIK KORRAPATI KISHORE KUMAR VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2022-3-47] [REFERRED TO]


JUDGEMENT

- (1.)Revenue has filed this appeal against the final Order No. 1813/2000-B dated 25.10.2000 in Appeal No. C/164/89-B2 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (for short "the Tribunal") whereby the Tribunal has set aside the order in original as well as the order passed in the appeal and held that the machinery and equipment imported by the assessee-respondent was classifiable under Heading 98.01 of the First Schedule to the Customs Tariff Act, 1975 (for short "the Tariff Act") and granted the benefit of Project Import under the Project Import Regulation to the assessee. Facts:
Assessee-respondent (for short "the respondent") is engaged in the setting up of industrial unit such as fertiliser plant. M/s. Indian Farmers Fertilisers Cooperative Ltd. entered into a contract with their parent Company M/s. Toyo Engineering Corporation, Japan for designing, engineering, fabricating and commissioning an Ammonia Storage Package Unit and a Co-generation Plant. Their Parent Company in turn entered into an agreement with the respondent to carry out all the works, services, erection and commissioning of the project on turn key basis. The respondent filed an application on 17.03.1986 with the Contract Registration Cell for grant of the benefit under the Project Import Scheme read with Notification No. 72/85-Cus., dated 17.03.1985 in respect of goods sought to be imported. Respondent has imported various special construction equipments, available at their overseas project at Kuwait, and filed eleven Bills of entry in March, 1986 for the clearance of goods, which were cleared on payment of duty under protest.

(2.)The Assistant Collector, under Adjudication Order No. S/5-Misc. 376/86-CC, dated 18.08.1987, rejected the request of the respondent for registration under the Project Import Regulation on the ground that the imported goods are the property of the respondent and even after execution and completion of the work, these goods would remain the property of the respondent and the ownership of the imported goods would not pass on to the Project Authority. It further held that as the goods could be used for other work elsewhere after the completion of the present project, the imported goods would not qualify for classification under Heading 98.01 of the Tariff Act.
Being aggrieved, the respondent filed an appeal before the Appellate Authority which was rejected. It was held that as per Heading 98.01 of the Tariff Act the items of machinery or component parts should go into the initial setting up of the unit and should not merely be used as an aid for the setting up of the unit or its substantial expansion. As the respondent could utilise the machinery elsewhere in the setting up of other plants, the impugned goods could not be classified under Heading 98.01 of the Tariff Act.

(3.)The respondent being aggrieved filed an appeal before the Tribunal which has been accepted by the impugned order. The Tribunal held that the grounds on which both the lower authorities have denied the facility of project import to the respondent were not sustainable in law. After detailed discussion the Tribunal set aside each of the findings recorded by the appellate authority and held that the respondent would be eligible to the benefit asked for.
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