ORDER
P.S.Bajaj
1. This appeal has been preferred by the appellants against the impugned order in appeal dated 31.7.2000 vide which the Commissioner of Customs(Appeals) had upheld the order in original of the Deputy Commissioner of Customs dated 2.2.200 who rejected their refund claim of Rs.7,20,346/- under Section 27 of the Customs Act.
2. The facts giving rise to this appeal may briefly be stated as under:
3. The appellants imported three electronic total stations-Topcon and Leica Make against two Bills of Entry dated 3.4.99 and 7.4.99 and paid duty thereon in all of Rs.7,20,346/- vide TR-6 challans dated 8.5.99 and 25.5.99. However,later on they filed an application for refund of the duty amount on the ground that they were not liable to pay the same in view of the exemption Notifications Nos.73/97 dated 3.10.97 and 20/99 as the equipments (electronic total stations) were imported by them to carry out the surveys as contemplated under the contract agreement for a project under taken by the National Highways Authority of India and that understanding was also given to them that their equipments would be cleared free of duty under the above said notifications. The Deputy Commissioner of Custom,s rejected their refund claim through order inoriginal dated 2.2.2000 on the ground that they were not entitled to the beneft of Notification No.73/97 as exemption under that notification was available to an importer who had been awarded contract for construction of roads, whereas the appellants obtained only a consultancy contract agreement for carrying out the surveys and not for the construction of roads.
4. Feeling dissatisfied with that order of the Deputy Commissioner of Customs the appellants filed an appeal before the Commissioner (Appeals) who rejected their appeal through the impugned order by endorsing the findings of the Deputy Commissioner in the order in original.
5. The appellants have come up in appeal before the Tribunal.
6. We have heard both the sides and gone through the record.
7. Admitted facts are these:
8. The appellants had imported three electronic total stations, against two Bills of Entry dated 3.4.99 and 7.4.99. They cleared the equipments against the payment of the duty in all of Rs.7,20,346/- voluntarily without any protest. They that time did not claim that they were entitled to the benefit of exemption Notifications Nos.73/97 dated 3.10.97 and 20/99 dated 28.2.99. They voluntarily paid the duty cleared the equipments. Only after a lapse of nearly five months from the date of payment of duty they moved application for the refund of the duty amount on the ground that they were entitled to the benefit of the exemption Notifications No.73/97 and 20/99 and as such were not liable to pay any duty on the imported equipments as the same were imported by them to carry out a topographical survey of NH-6 under a contract agreement dated 30.11.98 entered into with the National Highway Authority of India.
9. It has been also not disputed before us that out of the above referred two notifications relied upon -by the appellants only Notification No.20/99 was in force as Notification No.11/97 which was amended vide other Notification No.73/97 relied upon by the appellants, was rescinded much prior to the introduction of the Notification No.20/99.Even otherwise after a comparative study of both these notification it is quite clear that the exempt in provided vide Notification No.73/97 as far as that related to the impugned equipments, was the same as contained in the Notification No.20/99.
10. Notification n.20/99 dated 28.2.99 referred to above vide s.no.169 of the table annexed there to exempted inter alia electronic total station instrument for topographical survey, from, the whole of the Customs duty and additional duty subject to the condition No.75, the relevant portion of which with we are concerned, reads as under:-
“75. if- (a) the goods are imported by-
(i) the Ministry of Surface Transport,or
(ii)a person who has been awared a contract
for the construction of roads in India by or
on behalf of Ministry of Surface Transport,
by the National Highway Authority of India,
by Public Works Department of a State
Government or by a Road Construction
Corporation under the control of the
Government of State or Union Territory.”
Admittedly the appellants were not awared a contract for construction of roads in India by or on behalf of the Ministry of Surface Transport, by the National High Authority of India, by Public Works Department of State Government or by any Road Construction Corporation, when they imported the impugned equipments electronic total stations. They were only as per their own version awared contract agreement for carrying out the topographical Survey of NH-6. Therefore, apparently, the appellants at the time of import and clearance of the impugned equipments could not claim any benefit of Notification No.20/99 as they did not satisfy the requirement of condition No.75 referred to above.
11. The learned counsel for the appellants has, however, contended that since the construction activity could not commence and negotiated by the National Highway Authority of India, unless survey was carried out and as such the survey contract entered into by that authority with the appellants must be construed as contract for construction in terms of sub-caluse (ii) of clause (a) of Condition No.75 of Notification No.20/99 and as such benefit of this notification, could not be denied to the appellants. But we are unable to subscribe to this contention of the counsel being wholly misconceived, misplaced and legally untenable. The appellants are only engaged in the activity of surveys and not of construction of roads or buildings. The contract awarded to them by the National Highway Authority of India was only of survey of NH-6.After getting their survey report it was for the National Highway Authority of India to decide if construction of roads was to be carried out or not and to whom the contract for that work was to be awarded. The appellants were not in the run or race for getting contract for construction of roads at all. Their contract was to terminate on their submission of the survey report.
12. The language of condition No.75 (a) (ii) of the Notification No. 20/99 referred to above is quite clear and unambiguous and can admit no two interpretations. As per this condition, the benefit of Notification No.20/99 could be claimed for seeking exemption in respect of electronic total stations instrument by that importer who had been awarded contract for construction of roads and not for topographical survey. It is well settled principle that the exemption Notification has to be strictly construed and that too in a manner which would not defeat its purpose. The unambiguous wording of the notification has to be given effect to. The construction which enlarges the terms and scope of the notification is not persmissible under the law. In this context reference may be made to Novopan India Ltd. Vs. Collector, 1994(73) ELT 769(SC) wherein the Apex Court has observed, that the notification has to be construed strictly at the stage determination whether the assessee falls within its terms on not and in case of doubt or ambiguity, benefit of it must go to the State. Similarly, in Rajasthan Spg. & Wvg. Mills Ltd.Vs. Collector, 1995(77) ELT 474, the Apex Court regarding interpretation of exemption notification has ruled as under:-
“Liberal construction of exemption
notification which enlarges the terms
and scope of notification is not permissible
nor extended meaning assignable to exempted
item. The exemption notification is to be
construed strictly.”
By applying the above said principle of law laid down by the Apex Court regarding construction of exemption notification, it is difficult to accept the argument of the counsel that contract agreement for surveys be also taken to be contract for construction of roads for the purpose of condition No.75 of exemption Notification No.20/99 referred to above. Such an interpretation cannot be placed on the wording of the notification which is quite clear, unambiguous and admits only one interpretation that it covers the case of that importer only who had got a contract agreement for construction of roads. The acceptance of argument of the counsel would only amount to enlarging the scope and terms of the notification in question, which is not permissible. The contract of survey awarded to the appellants under which they allegedly imported the impugned equipments cannot be. therefore, construed to be a contract for construction of roads in terms of condition No.75(a)(ii)appended to exemption Notification No.20/99.
13. The learned counsel has, no doubt, referred to-
(1) Ballarpur Industries Ltd. Vs. CCE
2000(116) ELT 312(Tribunal)
(2) ASEA Brown Boveri Limited Vs. CCE
2000(121) ELT 666(T)
(3) CC, Bombay Vs. United Electrical
Industries Ltd.
1999(108) ELT 609(SC)
(4) CCE New Delhi Vs.Sunflame Industries
2000(119) 729(Tribunal-LB)
(5) Bajaj Tempo Ltd. Vs. CCE Pune
2000(120)ELT 472(T)
in order to convass that the wording of Notfn. No.20/99 be construed in favour of the appellants but the rule of interpretation of the notification emphasised in these cases is not different than the one laid down by the Apex Court in Novopan India Ltd. and Rajasthan Spg. & Wvg. Mills Ltd.(supra). In those cases also it has been observed that where the language of the notification is quite clear and unambiguous it has to be given effect to as it is and no addition or substraction therein can be made by while interpreting the same.
14. In the light of the discussion made above, the appellants did not satisfy the condition No.75 of the Notification No.20/99 and as such its benefit had been rightly disalalowed to them. The Customs duty as observed above, was voluntarily paid by them without claiming the benefit of the notification while importing and clearing the impugned equipments in May 1999. The payment was not made by them under protest nor under any mistaken belief of law or fact about the applicability of the above said exemption notification to their case. Their claim for refund of the duty, amount, in our view had been rightly rejected by the Commissioner(Appeals). The impugned order passed by the Commissioner(Appeals) upholding the order in original of the Deputy Commissioner of Customs disallowing the refund claim of the appellants is prefectly valid and needs no interference.
15. Consequently, there is no merit in the appeal of the appellants and the same is ordered to be dismissed.