The Ahmedabad Bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) held that the department cannot self-assign to itself the duty of declaring bad in law the certificate issued to the importer by the Ministry of Renewable Energy or decide the title to the goods, even when no one is disputing ownership.
The appellant, Apca Power Private Limited, filed a bill of entry and claimed exemption applies to all items of machinery and apparatus required for setting up a solar power generation project when imported into India. The relevant certificate claim exemption from the Ministry of New and Renewable Energy was duly produced to claim such exemption.
The Customs Department, however, made investigations against them on the ground that a certificate was obtained and an exemption claimed. Even when they were not owners of the goods, and the High Sea Sale Agreement was shown just for the sake of exemption.
The Advocate for the appellant argued that for the purpose of Section 2(26) of the Customs Act, 1962 the importer is one who holds himself as an importer for the purposes of importation by filing Bill of Entry etc., and that department has not brought anything on record that certificate produced by them from the Ministry of New & Renewable Energy was at any stage withdrawn or got cancelled by it.
The Counsel for the appellant made it clear that in the absence of any claim by anyone of being an owner in the transaction, department is precluded from itself determining ownership for the purposes of Sec. 2(26) of the Customs Act, 1962.
The Tribunal of Somesh Arora (Judicial Member) and Raju (Technical Member) has observed that the existence or otherwise of a high-seas sales agreement makes no difference under Section 2 (26), of the Customs Act, 1 962, regarding documented and claimed “importers”.
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