REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1831 OF 2006

Commissioner of Customs, (Prev.) Gujarat … Appellant

Versus

M/s Reliance Petroleum Ltd.          … Respondents

J U D G M E N T

S.B. Sinha, J.

1. The validity  of  an exemption  notification  bearing No.11/97-Cus

dated  1.3.1997  as  amended  by  notification  No.55/97-Cus  dated

13.6.1997 granting exemption to various imported goods including EOT

mobile crane required for setting up crude petroleum refinery subject to

fulfilment of certain conditions, is in question in this appeal which arises

out of judgment and order dated 8.7.2005 passed by the Customs, Excise

and Service Tax Appellate Tribunal, West Zonal Bench, Court No.2.

2. The fact that the crane in question was imported for using the same

in setting up a refinery is not in dispute.   

What is in dispute is that whether a crane when placed on a vehicle

which the appellant wrongly stated to be a ‘motor vehicle’ would fulfill

the description  of  a  mobile  crane  or  a  ‘material  handling  equipment’.

Valuation of the said crane was also questioned.   

The fact that different parts of the said crane were imported by the

respondent herein as second hand equipment is also not in dispute.  It is,

however, accepted that the original manufacturers of the two part of the

said equipment were different.   We may, at  the outset,  notice that  the

Notification dated 11.4.1997 was issued by the Central Government, in

exercise of its power conferred upon it under Section (1) of Section 25 of

the Customs Act, 1962, being satisfied that it was necessary in the public

interest so to do, made further amendment in notification No.11/97, CUS.

dated 1.3.1997, the relevant entry whereof is as under :

“(1) (2) (3) (4) (5) (6)

144A 84  or  any other Chapter

Goods  specified in  List  8A required  for setting  up  crude petroleum refinery

Nil Nil -”

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3. By reason of the amendment, it was, inter alia, provided that in the

annexure,  for List  8A the goods specified therein shall  be substituted,

relevant portion of which reads as under :

“16.  All  types  of  Materials  Transporting Equipments,  including  loading  and  unloading arms  and  racks;  gantries,  dispatch  tanks, loading/  transfer  pumps,  hydraulic  systems, weighbridges,  Diesel  shunters,  feed  or injenction  or  spray  nozzles,  skimmers,  soot blowers;  with  instrumentation  and  control systems,  including  load  cells  and  metering stations.

XXX XXX XXX

18. All  types  of  Material  Handling Equipments,  including  belt  or  pneumatic conveyors,  ducts,  hoists,  bucket  or  jib  cranes, (with  or  without  access  gangways),  pipes and hoses,  funnels,  hoppers,  disenganging  lock hoppers;  catalyst  addition  pots,  valves  and sampler  devices;  bagging,  weighing  and  bag stitching systems; weigh bridges; buoy systems for  crude  oil  receipt;  pipeline  end  manifolds with  valves,  tenders,  mooring  aids,  laser docking  systems,  product  tanker  loading facilities;  with  associated  equipments, instrumentation  and  control  systems  and auxiliaries.

XXX XXX XXX

44. Special  Maintenance Systems, including hydrojetting tools, pneumatic torque wrenches; EOT/mobile  cranes;  hoists,  grinders,  high pressure  cleaning  systems,  induction  bending machines;  auto  welding  machines,  various welding equipments like girth-welding, vertical

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flux  cord,  bottom  saw,  four  side  edge preparation,  angle  rolls;  rolling  and  leveling machines, sky climbers, hot tapping machines, bolt tensioners, high pressure test pumps, tube bundle  pullers,  tube  nippers,  ultrasonic  leak detectors,  machine  condition  monitoring systems  and  associated  sub-assemblies; vibration  analysers  and  computerized alignments systems.”

4. Respondent No.2, for the purpose of setting up a crude petroleum

refinery was required to make erections at 28 different locations.  For the

said purpose, it entered into a contract with M/s. Europa BV of Holland

on or about 23.10.1997 with effect from 20.11.1997 for supply of the

crane and the trailer.  Pursuant to and in furtherance of the said contract,

a heavy duty platform ringer mobile crane and other  equipments  were

imported on or about 31.1.1998 wherefor the bill of entry contained the

following declaration in respect of the said goods as:

“(a) Heavy  Duty  Platform  Ringer  Mobile Crane  and  Grove  MZ90  sky  Worker Mobile Crane.

(b) Fork Lift Manitw – HT-3500.”

5. Indisputably, the said item was imported in a dismantled condition

in 146 packages showing the consignment to be falling under Chapter

Sub-Heading 8426.19 and 8427.90 respectively of the Customs Tariff.

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6. Respondent  claimed the  benefit  of  concessional  rate  of  duty  in

terms of the said notification showing the value of the imported item to

be US $ 34,84,500 (CIF).  The said declaration of valuation was made for

custom purposes only.

7. On the  premise  that  the  value  declared  therein  was  inadequate

and/or ingenuine, the valuation thereof was assessed by Jawahar/Mumbai

Customs House through an expert.  It was opined :

“That  the  6  Line  Trailers  (self  propelled modular transport system) supplied along with Platform Ringer Crane could not be treated as one unit i.e. Mobile Machine/Mobile Crane as the Crane was neither mounted on the 6 Line Trailers  nor  the  Crane  and  the  Trailers  were specially  designed  for  each  other  forming  an integral  mechanical  unit  and,  accordingly, suggested  assessment  of  Cranes  and  Trailers separately.”

8. The value of the said goods was assessed at DFL 60,00,000/-.  A

provisional assessment was made in terms of Section 18 of the Act and

the goods were released on respondent’s furnishing a bond for a sum of

Rs.5,84,32,813 along with a Bank Guarantee of Rs.58,43,281/-.   

9. An  Appraising  Officer  valued  the  said  equipment  at

Rs.11,86,20,000/- as in the year of manufacture.  A final assessment was

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made upon enhancing the value and denying the benefit of concessional

exemption  claimed  under  Notification  No.55/97-Cus.  A total  customs

duty  of  Rs.20,04,58,132/-  was  assessed  by  the  Superintendent  of

Customs.

10. A show cause notice was issued as to why the differential customs

duty  of  Rs.18,62,92,602/-  should  not  be  directed  to  be  paid  by  the

respondent.

11. An  appeal  was  preferred  thereagainst.   The  Commissioner

(Appeal), in terms of his order dated 5.5.2000 noticed the clauses in the

contract for import of machinery and opined that the imported item was a

self-propelled modular transport system, stating :

“It is  seen from the above discussion that  the appellants  had  imported  a  mobile  crane, technically  known  as  “Heavy  Duty  Platform Ringer  Mobile  Crane  &  Grover  MZ  90 Skyworker  Mobile  Crane”.   The  description itself  suggests  that  is  a  mobile  crane.   The invoices describe them as mobile crane and also the  Chartered  Engineer  who  has  issued  a certificate  about  the  valuation  and  other technicalities  of  the  imported  goods  has mentioned  the  goods  as  mobile  crane.   The purpose  of  importing  these  goods  is  that  the appellants were in the process of setting up a crude petroleum refinery and they required the work of erection to be done at  various points and to  carry the load  to  different  locations,  a crane was required,  as the crane which would

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carry such heavy load, could not remain static, for  the  purpose  of  providing  mobility  to  the crane,  8  SPMTS  i.e.  self  propelled  modular transport system have been provided, this crane is mounted on the 8 SPMTS.  The intention of the  appellants  is  very  clear  that  they  have imported mobile crane.  The said mobile crane was  disassembled  by  the  supplier  while dispatching  the  same  for  the  sake  of convenience in transport and the same has been re-assembled at the site.  It appears that this has been misunderstood by the lower authority and it  has  been  held  that  these  are  two  separate items.   I  find  substantial  force  in  the contentions  raised  by  the  appellants  in  this regard that these are not two separate items but a single mechanical unit.”

As regards classification of the said goods, it was held :

“In the  present  case,  the  crane and 8 SPMTS have  been  imported  as  an  integral  unit,  as independently they cannot perform the work for which  they  have  been  imported  and  for  this purpose the crane has been mounted on the 8 SPMTS to provide mobility and therefore, both the goods have to be considered as a one single unit.  The heading 87.04 is in respect of “Motor Vehicle  for  the  transport  of  goods”  and  the disputed  goods  8  SPMTS  are  not  motor vehicles,  they have been specifically designed to  make the crane mobile.   Therefore,  in  any view of matter, the classification of 8 SPMTS under  chapter  heading  8704.90  is  ruled  out. For the reasons given above, the 8 SPMTS is an integral  part  of  Platform  Ringer  Crane  and would  merit  classification  under  chapter heading 84.26.”

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On the aforementioned finding, it was held that the said imported

item attracts the benefit of the exemption, stating :

“Since it is now clear that the imported item is a mobile  crane  which  has  been  imported  for setting up of crude petroleum refinery, which is an undisputed fact, the exemption from duty is admissible to the present goods under the said notification.   These  goods  in  the  alternative, can  also  be  considered  as  material  handling equipment.  The definition of the term “material handling equipment” as given in Encyclopedia Britannica which has also been discussed in the decision of the Tribunal in the case of Ranadip Shipping  (supra),  defines  material  handling equipment  in  different  classes,  in  terms  of product handled, it includes machinery for bulk products  in  large  continuous  volumes, continuous processing based on industrial parts movement, discontinuous processing of a wide variety  of  goods  and  order  filling  of  large varieties  of  goods.   Secondly  it  classifies  in relation to its mobile characteristic and includes both stationery and movable facilities.  Thirdly, it  identifies the types of equipments itself and includes  wheeled  carts,  power  and lift  trucks, trailer trains, racks and pallets, bins and boxes, mono  rails  and  conveyors,  containers,  unit loads and cranes and hoists.  There is no doubt that  the  mobile  crane  is  a  material  handling equipment  as  per  this  definition  and  is therefore,  also  covered  under  Sr.No.18 of  the notification which covers all types of material handling  equipments  and  is  exempt  from the duties specified thereunder.”

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On the question of valuation, it was held :

“In this regard, I find that the addition of 1% of the  value  of  the  imported  goods  towards  the transportation  charges  for  bringing  the  goods from anchorage to jetty has no sanctity of law. The  appellants  have  included  1%  landing charges  in  the  assessable  value  of  goods  for import of goods, which is evident from the bill of entry.  Further adding 1% is in contravention of Rule 9(2)(b) of the Valuation Rules.  In this regard,  the appellants  have placed reliance on the judgment of the Hon’ble Supreme Court in the case of Coromandel Fertilizers Ltd. (supra) wherein the Apex Court  has held that landing charges  when  assessed  at  a  percentage, Customs cannot add any amount thereto on the ground  that  expenses  for  unloading  were  not covered in the landing charges, since they cover the totality of all that an importer expends for bringing  imported  goods  from  ship  to  land. Further, I find that for resorting to Rule 5 of the Customs Valuation Rules, 1988, the value can be  determined  on  the  basis  of  “similar”  or “identical  goods”.   These  terms  are  defined u/s.2(1)(c) and (e) of these aid Rules.  As per the definition of these terms, identical goods or similar goods mean the imported goods which are  same  in  all  respects,  including  physical characteristics, quality and reputation, produced in the same country and produced by the same person.  It is seen from the literature of both the items that these two cranes are not similar.  The Platform Ringer Crane moves in a ring and for the purpose of mobility it has been mounted on 8 SPMTS, whereas, the comparable crane is a Crawler  Crane,  as  the  name  suggests  it  has crawler mechanism which distinguishes it from the crane in question,  the present  crane has 8 SPMTS  which  are  not  there  in  the  crawler

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crane,  the  crawler  crane  is  new,  the  crawler crane is certified to move on its crawlers with 75% of its maximum load on the hook which is its  unique feature,  the year of manufacture of two  cranes  are  different,  the  crawler  crane being branded crane can realize a much higher commercial value whereas the crane in dispute is nearly an assembled tailor made crane.”

It was furthermore held :

“It  is  also  pertinent  to  note  that  the  present crane is  a second hand machinery,  which  has been imported for a specific job to be carried out  and  it  has  not  been  purchased  by  the appellants,  it  has  been  hired  by  them with  a condition to re-export the same after the job is accomplished.   As regards  the  valuation  of  8 SPMTS, I find  that the year of manufacture of 6  Line  Trailer  imported  at  Jawahar  Custom House has not been disclosed, moreover, it was a 6 Line trailer, whereas,  the present  one is 8 SPMTS,  therefore,  there  is  difference  in  the capacity of the two and they are not comparable goods.  The lower authority has been found to have  given  deductions  on  account  of depreciation for arriving at the fair value for all the disputed items, which he has considered as separate  items,  but  there  is  no  reason forthcoming to show the basis adopted by him for giving such deductions on the original value of  comparable  goods.   Moreover,  I  find  that since the present goods are second hand goods, there is no contemporaneous import of similar goods or identical goods brought on record by the lower  authority,  declared  value is  the fair value U/s. 14 of the Customs Act, 1962.  There is  no  dispute  nor  any  evidence  that  the appellants  have  remitted  any  extra  payments

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clandestinely  to  the  foreign  suppliers  over above the  invoice  value.   In  absence  of  such allegation, there is no justification in resorting to  Rule  5  of  the  Valuation  Rules,  without adequate  comparable  goods.   Accordingly, there is no legal justification in enhancing the value of the imported goods.  Especially so in the  present  case,  because  the  goods  imported are second hand goods and there is a provision under EXIM policy as could be seen from the Handbook of Procedures 1997 – 2002, in para 5.4 it has been said that actual user shall, inter alia,  furnish  a  certificate  from  any  of  the Inspection and Certification Agencies listed in Appendix  32A,  where  the  CIF  value  of  the imported  goods  is  Rs.one  crore  and  above, certifying the residual life of the capital goods and  reasonability  of  the  purchase  price.   In accordance  with  this  proviso,  the  appellants have obtained and produced a certificate from a Chartered  Enginer,  whose  name  appears  at Sr.No.6  of  Appendix  32A,  wherein  he  has certified  the  fair  market  value  of  the  goods, which is the same as has been declared by the appellants.   Therefore,  I  find  that  there  is  no legal justification for enhancing the value of the imports made in the present case.

12. The  Commissioner  (Appeals)  furthermore  found  that  the

assessment  having  been made behind the  back  of  the  respondent,  the

same was violative of the principles of natural justice.

13. The Tribunal agreed with the said findings of the Commissioner

noticing  several  Chapter  Headings.   It  was  found  that  such  mounted

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cranes  primarily  used  for  hauling  pressing  or  changing  the  site  of

operation at this, shall would be classified under Heading 84.26 or under

Heading 8431 even if presented with the tractor (whether or not mounted

thereon), such tractors, with its operating equipment are to be classified

separately under Heading 87.01.

14. Noticing the notes  on machine mounted on tractor  type appears

under Heading 84.26, it was held :

“The  word  ‘presented  separately’  in  the  HSN chapter  note  has  to  be  interpreted  ‘Imported independently  of  a  lifting  device  of  a  Crane’ and  not  when  the  import  is  along  with  such lifting device of Crane and platform, it  has to be  placed under  84.25  to  84.30,  when sought for  assessment  &  presented  to  be  cleared  on same BE as a set.   Chapter  note 3 to Section XVI would call for such a classification.  The notes are being misread by Revenue.  We find no  reason  to  classify  the  propelling configuration platform of 8 SMPTs separately, in  this  case,  than  the  Ringer  Crane. Classification  has  to  be  under  heading  84.26 and not under 8701 on the reasons as stated in the background of the case and or the grounds adopted.   We find  no  reason  to  consider  the SPMTs  to  be  an  independent  equipment imported  and  presented  for  classification separately in the facts of this case, and on the grounds made out.”

It was furthermore held :

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“The uncontested role played, is to render the operations  of  the  crane  useful  at  different locations at the Refinery site, for which it has been  imported;  how  it  functions  to  lift  a particular  load,  i.e.,  while  on  the  moving platform or on its jack, is not  relevant  to rule out  is  common  understanding  to  be  as  a ‘Mobile  Crane’.   A ‘Mobile  Crane’ would be one which can perform its function at different locations; a crane that can move with the load to different sites would be a ‘Travelling Crane’ like an EOT crane, while a crane on propelling platform  haulage  tractors  or  guided  on  rails, capable of operations at different sites would be a Mobile Crane.”

It was observed :

“Surely all  elements/components  as  envisaged under  note  3  to  Section  XVI  cannot  work simultaneously  all  the  time.  A  component machine will  function only when the ascribed function is called for.  Propelling base SPMTs would  be  called  for  in  use  to  change  the location  in  this  case  and  change  in  location need not be with the load lifted since it is not a traveling  crane.   The  importer  of  SPMTs  is admittedly is to import mobility to the Crane to operate at different places.  A ‘mobile crane’ as would be understood has to be a crane which can move and relocate; as to how it functions at different  sides  i.e.  mounted  on  its  propelling mechanism  or  otherwise  or  partly  on  the propelling mechanism or otherwise or partly on the propelling mechanism and partly on jacks to gain  leverage  for  lifting  will  not  disentitle  it from being ‘mobile’.

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It was concluded :

(i) Comparison from the Technical literature and  then  comparing  the  present  import with the values of a Crawler Crane CC- 12600  an  accepted  Mobile  Crane imported at Jawahar Custom House to be identical and similar to goods herein only on the grounds of Lifting Capacity of the Crawler Crane CC-12600 and the present imported Crane to be same and thereafter taking  the  purchase  price  of  Crawler Crane  CC-12600  as  available  in  the literature  to be DM 25 Million in  1997 and  then  applying  the  valuation  to  the crane  in  the  present  case  cannot  be upheld.   One  cannot  appreciate comparison  valuation,  as  arrived  at, merely on capacity basis when goods are of  different  models  old  machinery with different  usage  and  have  ‘Opportunity Costs’ inbuilt for such specific old used machinery.   The  application  of  Best Judgment  Rules  also  has  to  be  in conformity  with  the  Valuation  Rules. One cannot compare unlike or dissimilar goods, to arrive at valuations based on by comparable goods rules, even under best judgment rules.  The proposal as made in the appeal cannot be therefore upheld.

(ii) CC (Appeal) in the impugned order has dealt  with  the  aspect  of  valuation  in extension in para 11 and we find no valid grounds to repeal those findings.”

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15. Learned Solicitor General, in support of this appeal, would submit

that  a  distinction  must  be  made between  a  mobile  crane  and  a  crane

mounted on a moving platform fitted with wheels.  It was urged that the

finding of  the Tribunal  is  not  clear  as  to  whether  the  equipment  is  a

mobile crane or a material handling equipment.  It was urged that in any

event only the crane would be a material handling equipment and not a

platform  fitted  with  wheels  as  they  had  been  manufactured  by  two

different  manufacturers.   As  regards  valuation,  it  was  contended  that

keeping in view the report of the expert, the Commissioner (Appeals) as

also  the  Tribunal  committed  a  serious  error  in  accepting  the  invoice

value.

16. Mr. Harish N. Salve, learned senior counsel appearing on behalf of

the  respondent,  on  the  other  hand,  would  urge  that  the  notifications

contained  overlapping  entries.   An  equipment  may  fall  within  the

meaning  of  the  term  ‘electric  overhead  traction’  or  ‘mobile’.   Our

attention was drawn to the fact that the said equipment was imported for

a temporary period and it has already been re-exported.   

17. We have noticed hereinbefore that  the First  Appellate Authority

has delved deep into the  matter  to  arrive at  a  finding of fact  that  the

purpose for which the crane had to be used is an ordinary mobile crane.

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It was opined that having regard to the nature of the work for setting up

of a crude petroleum refinery would not have been possible and only for

that purpose, such a material handling equipment, as per the definition

contained in the said notification No.11/97 as amended by notification

No.55/97 had to be imported.

18. The  notification  must  be  interpreted  in  a  broad  manner.

Exemption had been granted to a large number of goods specified in List

8A  required  for  setting  up  crude  petroleum  refinery.   The  project

evidently was a huge one.   

In List 8A, as many as 45 items were listed.  Some of the headings

are overlapping.  Item Nos.16 and 18 wherewith we are concerned use

the  word  ‘all  types  of  materials’  and  ‘all  types  of  material  handling

equipments’.  The fact that there are two parts in the crane in question is

not in dispute.  The fact that two parts thereof were manufactured by two

different manufacturers is also not in dispute.  It is also not in dispute

that the respondent had imported the same as a second hand item from

the same party.  It was to be used as a crane and/or a material handling

equipment.  The findings of fact, as noticed hereinbefore, were arrived at

by  the  Commissioner  (Appeals)  as  also  by  the  Tribunal.   The

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Commissioner  (Appeals),  while  accepting  the  respondent’s  case,  had

considered the report of the expert thoroughly.

19. Submission of  learned Solicitor  General,  that  the observation of

the  tribunal  to  the  effect  “(T)he  note  3  to  Section  XVI  that  when  a

combination of machines, the Ringer and propellers imported in this case

are  intended  to  contribute  together  for  a  clearly  defined  function,

governed by one of the headings in Chapter 84, lifting special machinery

on this case at different sides, then the whole folk to be classified in the

heading appropriate to that function.  Therefore, propelling base in this

case, which is presented as imported along with ringer crane cleared on

the  same  BE,  consisting  of  8  haulage  SPMTs  in  this  case,  are  not

elements  presented  separately for  assessment  in  this  case.   They have

been  imported  as  a  specific  configuration  set  along  with  the  Ringer

Crane, platform etc.; are not clear,  may not be correct.  The Appellate

Authority having considered the matter from several angles, it was not

necessary for the Tribunal to deal with all aspects of the matter.”; is not

apposite.

20. In  our  opinion,  the  entire  order  has  to  be  read  as  a  whole.

Exemption was granted to equipments made to be used for a particular

purpose.   A contextual  meaning  to  the  entries,  keeping  in  view the

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nature  of  exemption  sought  to  be  granted  by  reason  of  the  said

notification, must be assigned.  The crane was to be shifted from place

to place covering a huge area.   Its  services were required at a large

number of places.  It has been found that the description of the crane,

technically given as Heavy Duty Crane was, in fact,  a mobile crane.

Only with a view to provide mobility thereto, a self-propelled modular

transport system had been provided.   

It  had  to  be  consigned  in  different  parts  for  convenience  of

transport so as to enable the importer to reassemble the same.  It was on

that basis, the equipment was found classifiable under Heading 84.26

and not 8724.90.  In the alternative, the goods were found to be falling

under serial  No.18 of the notification.   This finding of fact is  not  in

question.   

What is in question is that only the crane part of the equipment

would come within the purview of the exemption notification and not

the entire equipment.   

We do not agree with the said contention.  The purpose for which

the  exemption  was granted  must  be  considered  in  its  entirety.   The

purpose of grant for exemption cannot be lost sight of.  The Central

Government must be held to be aware, if not of the equipment itself,

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but about the nature thereof which would be required for setting up a

crude oil refinery.   

We are not oblivious of the proposition of law that an exemption

notification should be construed directly but it is also well settled that

interpretation  of  an  exemption  notification  would  depend  upon  the

nature and extent thereof.  The terminologies used in the notification

would  have  an  important  role  to  play.   Where  the  exemption

notification ex facie applies, there is no reason as to why the purport

thereof would be limited by giving a strict construction thereto.

21. The  comparison  made  by  the  learned  Solicitor  General  that

mobility of a person would depend upon his personal fitness and not

when he is placed on a wheelchair, in our opinion, is not apposite.  The

purpose  of  grant  of  exemption  is  different.   The object  for  grant  of

notification  shall  be  considered  in  a  broad  based  manner.   The

wordings  used  therein  have  to  be  given  its  natural  meaning.   The

purpose  must  be  allowed  to  be  achieved.   The  words  ‘all  types  of

materials’ should be construed widely.   

22. We, therefore, are of the opinion that in view of the entries an

furthermore the purport and object the notification sought to achieve,

the  Commissioner  (Appeals)  and  the  Tribunal  cannot  be  said  to  be

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wrong in their findings that the equipment in question would be entitled

to the benefit of exemption.   

23. So far as the valuation aspect is concerned, why a different view

has been taken from the one disclosed in the invoices has not already

been spelt out by the assessing authority.  The valuation was found to

be a plausible one.  It was a second hand machinery.  Valuation of the

equipment which was in the mind of the expert  of the equipment in

question was found as of fact to be of different nature.  Those who deal

with valuation of a second-hand machinery and valuation of a newly

manufactured equipment may be different persons. No fraud on the part

of the assessee has been alleged.  No illegality or any suppression has

also been alleged.   

24. The Appellate Authority has gone into the said question at some

details.  Its finding to the effect that addition of 1% of the value of the

imported goods towards the transportation charges is contrary to Rule 9

(2)(b)  of  the Valuation Rules  has  not  been disputed.   The Appellate

Authority, furthermore, apart from arriving at a finding of fact that the

crane which was in the mind of the expert was different from the one

which  was  imported  by  the  respondent  herein,  also  opined  that  the

crane was a second hand machinery which  had been  imported  for  a

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specific  object  to  be carried out  and has  not  been  purchased by the

appellant,  was also a relevant factor which, however, in our opinion,

rightly been taken into consideration..

25. For the aforementioned reasons, we find no merit in this appeal.

It  is  dismissed  accordingly  with  costs.   Counsel’s  fee  assessed  at

Rs.50,000/- (Rupees fifty thousand only).

………………………..J. [S.B. Sinha]

………………………..J. [Lokeshwar Singh Panta]

New Delhi; May 16, 2008.

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