Custom, Excise & Service Tax Tribunal
Ongc Tripura Power Company vs Kolkata-Port on 30 January, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No. 78809 of 2018
(Arising out of Order-in-Appeal No. KOL/CUS(Port)/AA/1050/2018 dated
11.06.2018 passed by Commissioner of Customs (Appeals), Kolkata.)
M/s. ONGC Tripura Power Company Ltd.
(6th Floor, A-wing, IFCI Tower-61, Nehru Place,
New Delhi-110019)
Appellant
VERSUS
Commr. of Customs (Port), Kolkata
(Customs House, 15/1, Strand Road, Kolkata-700001)
Respondent
APPEARANCE :
Mr. Kamal Agarwal FCA & Mr. Manish Arora, Advocate, for the Appellant Mr. S. Debnath, Authorized Representative for the Respondent CORAM:
HON'BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) HON'BLE MR. RAJEEV TANDON, MEMBER (TECHNICAL) FINAL ORDER NO.75117/2024 Date of Hearing : 30 January 2024 Date of Decision: 30 January 2024 PER R. MURALIDHAR:
The Appellant has imported the goods on Project Import basis wherein the goods were classified under CTH980100 and Customs Duty was fully exempted vide Notification No. 12/2012-Cus dated 17/03/2012 as amended from time to time. Proceedings were initiated at the time of finalization of the Bills of Entry. After due process, the Adjudicating Authority held that the goods in question were not directly relatable to the project. He also noted that the Essentiality Certificate to be issued by the Secretary, Government of Tripura was infact issued only by the Deputy Secretary. Therefore, he 2 Customs Appeal No. 78809 of 2018 held that the conditions specified under Notification have not been fulfilled. Accordingly, he confirmed the demand of Rs.19,14,41,111/- while finalizing the provisionally assessed Bills of Entry. Being aggrieved, the Appellant filed their Appeal before the Commissioner (Appeals). The Commissioner (Appeals) has upheld that the OIO on the same grounds. Being aggrieved, the Appellant is before the Tribunal.
2. The Learned Counsel submits that even before the Order-In- Original was passed on 24th June 2014, they have obtained the Essentiality Certificate, signed by the Secretary, Government of Tripura, wherein clear reference has been made in the earlier Essentiality Certificate issued by the Deputy Secretary. Therefore, the Certificate issued on 24th June 2014 should be taken as ratifying the earlier Certificate and not as a fresh Certificate. He further submits that all the goods in question were imported in respect of projects only. In order to run the Project successfully, the spares are essential ingredients. He also relies on the case law of Commr. of Customs (Imports), Mumbai Vs. Tullow India Operations Ltd.-2005 (10) TMI 502 (SC), wherein the issue was as to whether the Certificate produced subsequently can be taken as proper fulfillment of condition or not. The Hon'ble Suprme Court, in the case of Tullow India Operations Ltd, cited supra has held has under:-
The conditions referred to in sub-section (1) of Section 25 as regard time when such certificate is to be produced would, thus, mean those which were within the control and power of the importer. If it is not within the power and control of the importer and depends upon the acts of other public functionaries, non- compliance of such condition, subject to just exception cannot be held to be a condition precedent which would disable it from obtaining the benefit therefrom for all times to come. [Emphasis supplied]
3. In view of these submissions, the Learned Counsel submits that the present Appeal may be allowed.
3Customs Appeal No. 78809 of 2018
4. The Learned AR submits that the Appellant has failed to produce proper Essentiality Certificate at the time of imports. Several of the goods imported were not in the nature of the capital goods and their usage was also not clear. Therefore, he justifies the demands confirmed by the lower Authorities.
5. Heard both sides and perused the Appeal Papers and documents submitted before us.
6. We find that the Appellants have imported all the goods for the Power Project and there is not dispute on this count by the Revenue. When the Project imports are made, several of the goods have to be imported, keeping in view the future Repairs and Maintenance activity. Therefore, we do not agree with the findings of the Adjudicating Authority that the goods in question were not part of the Project Imports. The very fact that Essentiality Certificate for these goods have been issued by the Deputy Secretary initially and was subsequently ratified by the Secretary, Government of Tripura shows that these goods are required for the Project only.
7. The Hon'ble Supreme Court in the case of CC (Import), Mumbai Vs. Tullow India Operations Ltd, cited supra has held has under:-
35. The essentiality certificate, thus, must be treated to be a proof of the fact that the importers have fulfilled the conditions enabling them to obtain the benefit under the exemption notification. [Emphasis supplied]
8. We find that before the OIO was passed, the appellant has procured the Essentiality Certificate duly signed by the Secretary, Government of Tripura which ratifies the earlier Certificate issued by the Deputy Secretary. We also note from Serial No. 507 of this Notification that the goods required for setting up of any Mega Power Project would be eligible for the exemption. The goods in question satisfy this condition, which is not being disputed as can be seen from Para 8.1 of the Order-in-Appeal. Therefore, we hold that the Appellant 4 Customs Appeal No. 78809 of 2018 has fulfilled the conditions specified under Notification No. 12/2012- Cus dated 17/03/2012.
9. Considering the above facts, we set aside the impugned Order and allow the Appeal with consequential relief, if any, as per law.
(Dictated and pronounced in the open court.) Sd/-
(R. Muralidhar) Member (Judicial) Sd/-
(Rajeev Tandon) Member (Technical) Pooja