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1. These two appeals are against the orders, dated 28-2-1997 and 28-5-1997 passed by Commissioner of Customs, JCH, Nhava Sheva made in Orders No. S/40-EPCG-161/96 & S/10-16/97 VA respectively. By the said order he had denied exemption claimed by the appellants under Notification 110/95-Cus. in respect of marbles imported by them on the ground that the imported items do not come within the definition of the capital goods as defined under the said notification.

2. Appellants are carrying on the business under the name and style of M/s. Enjay Hotels Pvt. Ltd. They proposed by their letter dated 15-2-1996, to build a 5 star hotel at Sandra (W), Mumbai. For the said project they made an application for import of marble slabs under Export Promotion Capital Goods Scheme to DGFT. The said application of the appellants was for 3 kinds of marble slabs viz. SERPEGGIANTE, GREEL THASSOS, RPSA PASTELLO of the Italian made. For their project they wanted to import the above types of marbles. The appellants stated that the proposed hotel under construction is a 5 star deluxe hotel with a vast lobby and deluxe guest rooms. The floorings and claddings of these areas with marble gives beauty and sense of opulense to the guests especially international visitors. The above Italian marble viz. SERPEGGIANTE (2) GREEL THASSOS (3) RPSA PSTELLO selected by their designers and foreign franchisers reflect their superior taste and style which are not available in the local market. Also the polishing of these marbles are to international standard. The prime areas are therefore, being decorated with these marbles and the remaining areas will have local materials. On the basis of the application, appellants were given EPCG Licence dated 23rd May, 1996 (Page 36 of the Paper book). The Licence provides that they have permission for importation of the marbles slabs of 2 cms thick Random size polished one face. However, they have to export Tourism Related Activity (Hospitality Industry) worth US $ 25,86,080/- in four times cif value of the capital goods of fob prices within a period of 5 years from the date of issue of licence.

19. Shri M.H. Patil, the ld. Counsel for the appellant has submitted in the course of the arguments that the appellant has imported marble slabs as capital goods under paragraph 7(7) of the EXIM Policy of 1992-97 under EPCG licence issued by the DGFT authorities for his five star hotel as a hospitality industry, engaged in tourism, development activities and also provides services. The benefit of Notification No. 110/95-Cus., dated 5-6-1995 as claimed, regarding the duty concession on the polished marble slabs imported from Italy under the definition of the capital goods thereunder. The licence was issued, after the scrutiny by the committee, consisting of Ministry of Finance, Commerce and Customs department. A export obligation was also attached to the licence under the said scheme. The marble slabs imported were used to decorate floors and surrounding inside walls in the hotel building. The proposed hotel under construction is a five star deluxe hotel with vast lobby and deluxe guest room. The flooring claddings in these areas are fixed, polished designed (one side) with marble slabs for beauty and by ways of opulence to the guests and international visitors. The 3 varieties of marble slabs described in the invoice were selected by the designers and foreign franchises, reflected their superior taste and style, not available in the local market. Polishing of these marbles is to international standard. The prime areas are being decorated with these marbles, and remaining area will have the local materials. The import under the EPCG licence is upheld by the department and the benefit of notification is denied in the order in original, even though the said material was required for rendering services to develop tourism and attract the international tourist and get foreign exchange and perform the export obligation. Items 1 to 3 and explanation (1)(c) in the notification referred above covers the case of the appellant, which is rendering hospitality services, and marble slabs come under the category of the component of a plant, as the marbles of the hotel building. Entire building is a plant. The DGFT has examined it in detail. The application for licence was issued after the decision of the committee. It is sufficient to get exemption as per 1992 (62) E.L.T. 741; 1992 (57) E.L.T. 563 (Cal.); 1994 (73) E.L.T. 32 and 1987 (28) E.L.T. 342 (Bom.). The plant is not defined anywhere. The dictionary meaning of the plant in the normal usage, as discussed by both the Members of the Bench, has to be accepted. The general exemption no. 76 and ALC Circular 24/95, dated 18-10-1995 and the Notifications 110, 111 & 130/95 regarding the capital goods rendering services, and the items supports the case of the appellant. The absence of the wording "directly or indirectly" in the notification is immaterial which refers to the manufacture of goods, and it has nothing to do with the rendering of the services, as the marbles are directly used. The utilization of it is not disputed. The discussion in paragraph 3 at page 19 by the ld. Technical Member of the latest case law 1998 (24) RLT 427 in the case of Vivek Alloy Co. v. C.C.E. under paragraph 4 supports the case of the appellant in paragraph 10 to 15 of the order. In 1998 (97) E.L.T. 159 it is mainly based on the licence of DGFT and there was no issue regarding the plant. The EXIM Policy is treated only as a adjunct, and the notification is relied on by the appellant in the main. The decision of the Supreme Court in Shashank Sea Foods Pvt. Ltd. and 1997 (91) E.L.T. 307, Delhi High Court in the Export Apparel case, it is held that the customs officers can investigate on the licence, but not its correctness or competence of the authority. The other angle of examination is for the purpose of levying customs duty on the imported marbles slabs under the EPCG Licence. Marble slabs within the meaning of the plant and is a capital goods. The decision of Bharat Starch case is distinguishable on various counts. How the notification is required to be interpreted is elaborately dealt within 1997 (94) E.L.T. 449 and 1997 (91) E.L.T. 34 (S.C.) which deals with only the manufacture of goods and not for rendering services.