Custom, Excise & Service Tax Tribunal
Shelf Drilling International Inc vs Commissioner Of ... on 11 January, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
WEST ZONAL BENCH
Customs Appeal No. 19 of 2008
(Arising out of Order-in-Appeal No. 565/2007/MCH/AC/VB/07 dated
08.07.2007 passed by the Commissioner of Customs (Appeals),
Mumbai-I)
M/s. Sedco Forex International Drilling Inc. .....Appellant
Transcocean House, Lake Boulevard
Hiranandani Business Park,
Powai, Mumbai
Vs.
Commissioner of Customs(Import), Mumbai .....Respondent
New Custom House,
Ballard Estate Mumbai
APPEARANCE:
Shri J.C. Patel, Advocate for the appellant
Shri Ramesh Kumar, (AR) for the respondent
CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Hon'ble Mr. P. Anjani Kumar, Member (Technical)
FINAL ORDER No: A/85013/2022
DATE OF HEARING: 23.07.2021
DATE OF DECISION: 11.01.2022
PER: P. ANJANI KUMAR
Brief Facts
This appeal assails the order-in-Appeal No.565/2007/MCH/
AC/VB/07dated 08.07.2007 passed by the Commissioner of
Customs (Appeals), Mumbai-I. Brief facts of the case are that
the appellants are engaged in the activity of carrying on offshore
oil exploration/ exploitation under contract with Oil and Natural
Gas Corporation (ONGC).; they imported Rig Trident-II in 1988;
the said tug was towed by M.V. Mighty Servant-2 which was
indicated in the Import General Manifest filed in respect of M.V.
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Mighty Servant-2; as there was ambiguity about whether a Bill
of entry was required to be filed in respect of the Rig Trident-II,
bill of entry was not filed although the fact of the Rig Trident-II
having been brought by towing by M.V. Mighty Servant-2 was
indicated in the IGM, filed per Mighty Servant-2; Customs
department too did not insist on filing of Bill of entry in respect
of Rig Trident-II; the said rig was engaged in operations from
May 1988 to Jan 1998 under Contract with ONGC; from January
1998 to November 1998under contract with Enron and from
December 1998 again under Contract with ONGC. A Show Cause
Notice dated 8th July 1999 was issued to the Appellants
proposing confiscation of the Rig Trident-II under Section 111 of
the Customs Act 1962 mainly on the ground that bill of entry
was not filed.
2. Commissioner confiscated the Rig Trident-II under Section
111 while giving option to redeem the same on payment of
Redemption of Rs.15 Crores and imposing penalty of Rs.5
Crores. This Tribunal, vide Order dated 27-3-2000, ordered pre-
deposit of Rs.3 Crores and furnishing of Bank of Guarantee of
Rs.50 Crores. Tribunal, vide final Order dated 2-2-2001, reduced
the fine to Rs.25 Lakhs and penalty to Rs.5 Lakhs. Tribunal,
while denying the benefit of exemption, held that it is open to
the importer to pursue the claim. Both the Appeals, by the
Appellants as well as the department, against the Tribunal's
Order dated 2-2-2001 were admitted by the Supreme Court.
3. The appellants exercised the option of redemption
requested that the redemption fine of Rs.25 Lakhs and penalty
of Rs.5 Lakhs be adjusted out of the pre-deposit of Rs.3 Crores
made as per Tribunal's stay order. Appellants deposited an
amount of Rs.26,67,94,320/-, in February-March 2001, and
informed vide letter dated 20-2-2001, that such duty was being
paid without prejudice to their rights and subject to their right to
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apply for Essentiality Certificate to the Ministry of Petroleum and
Natural gas and to claim refund upon getting such Certificate.
Petitioners challenged department's steps to en-cash the Bank
Guarantee of Rs.50 Crores, by filing Writ Petition No.481 of 2001
in the Bombay High Court. Hon'ble High Court restrained the
department from en-cashing the Bank Guarantee.
4. ONGC applied to Ministry of Petroleum and Natural Gas for
issuance of essentiality Certificate to enable the Appellants to
claim exemption from duty under Notification No.516/86-Cus
dated 30-12-1986, in force at the time of import of the Rig
Trident-II in April 1988, submitting that the rig was continuously
engaged in off-shore oil exploration-exploitation since 1988.
Ministry of Petroleum and Natural gas issued letter 20th
December 2001, to Director General of Hydrocarbons (DGH)
stating that the request for issue Essentiality Certificate in
respect of the import of Rig Trident-II had been examined in
consultation with Finance Division and there was no objection to
the issuance of the Essentiality Certificate by authorized Officer
in DGH office. Accordingly, to Director General of Hydrocarbons
(DGH), issued the Essentiality Certificate vide letter dated 21-
12-2001. Appellants, vide letter dated 28-12-2001, submitted
the Essentiality Certificate to the Deputy Commissioner and filed
Bill of Entry claiming the exemption from duty and also applied
for refund of the duty which was paid in February-March 2001.
The said application was rejected by Order dated 4-2-2002, inter
alia, on the ground that the matter was pending before Supreme
Court. Commissioner (Appeals), vide order dated 1-6-2004,
upheld the rejection. Supreme Court, vide order dated 2-11-
2004, rejected both the appeals and as a result Tribunals order
dated 2-2-2001, attained finality. Tribunal, vide order dated 15-
7-2005, remanded the matter to the Commissioner (Appeals) to
decide the Appellants' claim for exemption from duty and
consequential refund. Bombay High Court disposed off Writ
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PetitionNo.481 of 2001, vide Order dated 22-3-2006, directing
the Assistant Commissioner to examine the Appellants' claim for
exemption based on the Essentiality Certificate and finalize the
assessment of the Bill of Entry. In view of the High Court Order,
the Commissioner (Appeals) also, vide Order dated 31-5-2006,
remanded the matter to the Assistant Commissioner.
5. Director General of Hydro-Carbons, extended the validity
of the Essentiality Certificate for a period of one year from 8-8-
2006. Ministry of Petroleum and Natural Gas, vide letter dated
26th July 2006, clarified that since the Empowered Committee
under Notification No.516/86 had ceased to exist, the Ministry of
Petroleum and natural gas had examined the case in
consultation with IFD (Integrated Finance Division) who had
approved the issue of EC on ex-post facto basis. It was also
pointed out that such EC had been issued in the past also and
there was no irregularity in issuance of such EC on ex-post facto
basis. Assistant Commissioner, vide order dated 6-10-2006,
rejected the Appellants' claim for exemption based on the
Essentiality Certificate dated 21-12-2001 on the ground that the
Essentiality Certificate had been issued after the rescission of
Notification No.516/86 on 31-12-1988 and further that the
Director General of Hydrocarbons was not the authority
prescribed under the said Notification No.516/86. Commissioner
of Customs (Appeals), vide impugned order, upheld the order of
the Lower authority.
Submissions of the appellant
6. Shri J.C. Patel, Advocate, appearing for the appellants,
submits that theeligibility clause, which gives entitlement to the
duty exemption, under Notification No.516/86 is that the goods
should have been imported in connection with off-shore oil
exploration or exploitation; it is settled law that an eligibility
clause has to be strictly construed; this requirement is squarely
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met in the present case since there is no dispute at all about the
fact that Rig Trident -II had indeed been imported in connection
with off-shore oil exploration/ exploitation; Supreme Court held,
in the cases of ONGC Ltd Vs CC - 2006 (201) ELT 321 (SC) and
CC Vs Tullow India Operations- 2005 (189) ELT 401, that once
the eligibility clause which requires strict construction is fulfilled,
the condition must be construed liberally; the benefit of the
exemption cannot be denied merely because the Essentiality
Certificate was issued after the rescission of the Notification. He
submits that the facts of the instant case are comparable to that
ONGC case (supra); goods were imported in May-June 1999;
Essentiality Certificate, as required for claim of exemption under
Notification No.20/99-Cus dated 28-2-1999, was issued on 26-3-
2004, after the said Notification was rescinded on 1-3-2000.
7. Learned Counselfor the appellants submits thatthe
Supreme Court nevertheless held that the benefit of the
Notification cannot be denied for the delayed production of the
Essentiality Certificate; production of Essentiality Certificate
should be construed liberally as the eligibility clause was
satisfied; in the present case, the customs department itself did
not require filing of Bill of Entry payment of duty, when the Rig
was imported in 1988, although the IGM of MV Mighty Servant-
2indicated that it had towed Rig Trident-II; there was ambiguity
prevailing even in the customs department has to whether Bill of
Entry was required to be filed; Show Cause Notice was issued,
11 years after the import, in July 1999; i.e. and it would be
totally unjust to deny the exemption on the ground that
Essentiality Certificate was obtained after the rescission of the
notification in December 1988. He submits that the Principal
Bench of the Tribunal, in the case of Jagson International Ltd. v
CC 2006 (199) ELT 553, held that though essentiality certificate,
under Notification No. 196/89which was rescinded on 1-3-1997,
was issued in May 1999, for the rig imported in April 1993, the
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production of the essentiality certificate only reflected the
purpose for which the rig is imported and since such purpose is
not in dispute the exemption cannot be denied.
8. Learned Counselfor the appellants submits also that although
Notification No. 516/86 was not in force when the matter was
adjudicated and duty was to be paid in 2001, there were
successor Notifications No. 16/2000-Cus dated 1-3-2000 and No.
17/2001-Cus dated 1-3-2001 which also provided for similar
exemption. Learned Counselsubmits that denial of exemption on
the ground that DGH was not the authority specified in
notification No.516/86 also not tenable in law; the issue of
payment of duty itself was raised by the department after the
Notification No. 516/86 1999 got rescinded and the Empowered
Committee of the Ministry of Petroleum and Natural Gas as
specified in the said Notification ceased to exist; however, the
Ministry of Petroleum and Natural gas examined the case in
consultation with IFD and approved Director General, Hydro
Carbons, to be competent authority to issue Essentiality
Certificate ex-post facto basis; Director General, Hydro Carbons,
was also the authority under the Successor Notifications
Nos.No.16/2000-Cus dated 1-3-200 and No.17/2001-Cus dated
1-3-2001; Ministry of Petroleum and Natural Gas has itself
clarified, vide letter dated 26th July 2006, there was no
irregularity in issuance of such EC on ex-post facto basis. He
further submits, without prejudice to the aforesaid, that since
the rate of duty applicable in the present case was the rate in
force on the date of payment of duty (Feb-March 2001), under
Section 15 (1) (c) of the Customs Act 1962 and the authority for
issuing the EC under the successor Notifications, cited above,
was clearly the Director General, Hydro Carbons; hence, the
Essentiality Certificate issued was in order and exemption cannot
be denied.
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Submissions by Authorised Representative
9. Learned Authorised Representative, appearing for the
respondent department, submits vide oral and written
submissions that the appellants have argued that Section 125(2)
of the Customs Act, 1962 does not create a fresh liability; the
Hon'ble CESTAT had already confirmed the duty demanded, vide
final order dated 2.2.2001, holding that the goods were brought
into India without a license (as goods were second hand goods
more than seven years old); were removed from the Customs
Area without filing a Bill of Entry and without intimating Customs
authorities or getting their permission; the Rig was confiscable
under Section 111 (d), 111(h) & 111() of the CA, 1962; Section
28 has no play in the matter and that the issue would be
governed entirely by section 125(2) of the CA, 1962 and the
duty payable was in terms of Sec 15 (1)C). The order has since
been confirmed by the Hon'ble Supreme Court.
10. The Appellant's reliance on the case of ONGC Ltd Vs CC
2006(201) ELT 321(SC) is incorrect as the case is factually
different from that of the ONGC as the application for essentiality
certificate was made, before the filing of the bill of entry, on
5.4.1999; the goods were not smuggled nor prohibited in the
case of ONGC; as it was a case of provisional assessment, it was
permissible to submit the certificate later before final
assessment. The facts of the case of CC Vs Tullow India
Operations 2005(189) ELT 410 were similar. In the case of
appellants the application for essentiality certificate was not even
made at the time of filing of bill of entry. The bill of entry was
finally assessed. The benefit of the notification was also not
claimed in the bill of entry and the application for essentiality
certificate was made much after the final assessment of the bill
of entry. Relying on CCE, Calcutta Vs AlNoori Tobacco Products
reported in 2004 (170) ELT 135 (SC), he submits that as the
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facts of this case are entirely different, the same cannot be a
precedent. Further, Apex Court in the case of CC (Import),
Mumbai Vs Dilip Kumar & Co. reported in 2018 (361) ELT577
(SC) held that notification should be strictly interpreted and the
conditions of the notifications should be strictly complied with. In
the case of Jindal Drilling and Industries Ltd Vs CC, Bombay
2001 (138) ELT 1335 (Tri-Del) tribunal held that the benefit of
exemption notification was not available as the goods were
removed without proper permission and that no application for
the essentiality certificate was made at the time of removal of
goods. Hon'ble Supreme Court -2002 (140) ELT A95 (SC) upheld
the view. Further the case of Jagson International Vs CC -2006
(199) ELT 553, relied by the appellants, is also not applicable as
the facts are different from the impugned case.
11. Learned Authorised Representative further submits that
CESTAT, vide Final Order (Sedco Forex International Drilling Inc
Vs CC 2001 (135) ELT 625 (T)), held that the Rig is confiscable
under Section 111 (d), (h) and (i) thereof of the Customs Act,
1962; therefore, the rig is to be held to have been smuggled in
to India in terms of Section 2 (39) of the CA, 1962; the goods
were imported without a valid license violating the provisions in
terms of paragraph 30 (1) of the Import Policy 1988-91.Bombay
High Court endorsed this opinion vide their decision dated
22.03.2006 in W.P. no 481 of 2001 filed by the Appellant.
Further Apex Court, in CC Vs Aban Lloyd Chiles Offshore Ltd.
2017 (346) ELT 513 (SC), held that, such a Rig, brought into
India in such a manner, is confiscable under Section 111 of the
CA, 1962. He submits that the benefit of an exemption
notification cannot be extended to the Rig/goods smuggled into
India as held by Apex Court in CC Vs M. Ambalal & Co. 2010
(260) ELT 487 (SC).
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12. Learned Authorised Representative further submits that the
issue now is a dispute between the Appellant and ONGC under
The Arbitration and Conciliation Act, 1996; there can be no valid
claim for re assessment and refund of Customs duty from
Revenue; Supreme Court, vide their decision dated 20.04.2006,
in Arbitration Petition no. 1 of 2006 decided that ONGC is liable
to reimburse the amount of Customs duty to the Appellant. Only
the quantification of the liability was to be worked out; hence, as
far as the Appellant is concerned, it has decided that the duty is
payable without the benefit of Notification No 516/86 Cus. The
Appellant cannot be unjustly enriched by claiming the same
amount from both Revenue as well as ONGC as held by Apex
Court in Sahakari Khand Udyog Mandal Ltd Vs CCE 2005 (181)
ELT 328 (SC); any claim for refund of the said amount by the
Appellant, if sanctioned should be credited to the Consumer
Welfare Fund only.
13. Learned Authorised Representative also submits that the
Appellant smuggled the Rig into India on 26.04.1988; they did
not file any Bill of Entry; they did not have a license for its
import; they moved the rig out of the Customs Area without
permission and against the provisions of Sections 32, 33, 34 and
35 of the Customs Act, 1962; the appellants did not offer the rig
to assessment under Section 17, 46 and 47 of the Customs Act,
1962 and they did not claim Notification 516/86 Cus and no
application Essentiality Certificate was made until 06.06.2001.
He submits that the Essentiality Certificate submitted has been
issued by the Deputy General Manager (EC) Directorate General
of Hydrocarbons, Ministry of Petroleum and Natural Gas, New
Delhi, whereas the Notification 516/86-Cus required that the
Certificate be issued by the Member - Secretary of the
empowered Committee on the indigenisation of Oil Field
Equipment and Services of the Ministry of Petroleum and Natural
Gas, Government of India; on the date of issue of EC on
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21.12.2001, there was no such Empowered Committee, as seen
from the letter dated 26.07.2006 of the Under secretary, of the
said ministry; the Directorate General itself not sure their
powers to issue such a Certificate as seen from their letter dated
07.03.2006 to the ministry; Under Secretary to the Ministry
justified such an action by stating that it was approved by the
Integrated Financial Division (IFD) of the Ministry. He submits
that each Notification issued under Section 25 of the Customs
Act, 1962is placed before both Houses of Parliament for their
Approval, in terms of Section 159 of the Customs Act, 1962;
Director General is not a Committee; a decision which is to be
taken by an Empowered Committee cannot be taken by an IFD
of a ministry; IFD or an Under Secretary or a Deputy General
Manager of the Directorate General of Hydrocarbon cannot
assume to itself the powers of an Empowered Committee set up
for a specified purpose; Notification 516/86-Cus has the same
force and effect as a law made by Parliament; the very fact that,
the said Empowered Committee was dissolved or not constituted
and the Notification 516/86-Cus. was allowed to expire, together
indicate the resolve of the Legislature and the Executive to not
save any claim under the said Notification no. 516/86-Cus; the
dictum that "where a power is given to do a certain thing in a
certain way, the thing must be done in that way or not at all"
shall prevail He relies upon
(i). Orient Weaving Mills (P) Ltd Vs UOI 1978 (2) ELT J311 (SC)
(ii). Privy Council in Nazir Ahmed Vs King Emperor AIR 1936
PC 253
(iii). State of U. Vs Singhara Singh AIR 1963 SC 358,
(iv). MeeraSahni Vs Lt. Governor 2008 (9) SCC 177,
(v). Babu Varghese Vs Bar Council of Kerala 1999 (3) SCC
422
(vi). Steel Strips Vs CCE 2011 (269) ELT 257 (Tri - LB).
(vii). Centre for Public Interest Litigation Vs UOI 2011 (266)
ELT 6 (SC)
14. Learned Authorised Representative also submits that the
Appellant filed a Bill of Entry on 20.02.2001 and paid the
applicable duty along with Redemption Fine and penalty as
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ordered by CESTAT while seeking release under Section 125 (2)
of the Customs Act, 1962. No claim was made for exemption, in
the bill of entry, under Notification 516/86-Cus and on such
date, the said Notification did not exist; no Application was made
to the Ministry of Petroleum and Natural Gas for issue of any
Essentiality Certificate for the said Rig until 06.06.2001; as per
paragraph (2) of Notification 516/86-Cus. as amended, the
Notification shall be in force up to and inclusive of the 30th day
of November 1988; the said Notification is an example of
Temporary Legislation because it was time bound and expired on
its own terms without any Savings Clause and without any
successor; temporary Legislation is not subject to the provisions
of Section 6 of the General Clauses Act, 1897 as has been
decided in Kumho Petrochemicals Co Ltd Vs UOI 2014 (304) ELT
3 (Del) and UOI vs Kunho Petrochemicals Co. Ltd. 2017 (351)
ELT 65 (SC). He submits that the said Notification does not
attract the provisions of Section 159A of the Customs Act, 1962,
as the same was never repealed or rescinded or superseded by
any subsequent notification/ legislation; the Notification expired
on 30.11.1988 and did not save any right or privilege not
claimed during its life time. He relies upon
(i). District Mining Officer Vs Tata Iron and Steel Co AIR
2001 SC 3134
(ii). Rayala Corporation Vs Director of Enforcement AIR
1970 SC 494.
(iii). Kolhapur Cane Sugar Works Ltd. UOI 2000 (119)
ELT 257 (SC).
(iv). Justice G.P. Singh's Principles of Statutory
Interpretation 12" Edition Chapter 7 (pages 659 to 671)
He submits that No Branch of the Executive should be allowed to
run amok and act contrary to or beyond the power delegated to
it by the Legislature. No Branch of the Executive can act in any
manner in any area where it has no jurisdiction; hence, the
Certificate issued by the Deputy General Manager D.G.
Hydrocarbons is non est and ab initio void.
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15. Learned Authorised Representative also submits regarding
the claim of benefit under Notification 16/2000-Cus Or 17/2001-Cus
is not valid and not a Admissible; such plea was never made at any
stage over the past 20 years; it was not even made vide written
Submissions given during hearing before CESTAT on
15.10.2018; in terms of Rule 10 and 23 of the CESTAT
(Procedure) Rules, 1982, no ground can be raised in Appeal
without filing an Application in the prescribed Form, giving the
opposite side time to file a reply and seeking permission from
the Bench by an Order; no such Application has been filed; in
any case, no such ground can be raised for the first time before
CESTAT, as it was never raised before the Original or First
Appellate Authorities. He also submits that Notification 16/2000-
Cus is not applicable for the following reasons.
(i). Notification 16/2000-Cus Notification 16/2000-Cus did not exist
on the date of payment of duty;
(ii). the Appellants are a Foreign Company and the Rig is
classified under CTH 8905.20;
(iii). duty was paid by the Appellant on 2.3.2001; Notification
16/2000-Cus dated 1.3.2000 was rescinded by Notification
21/2001 Cus. Dated 1.3.2001 and hence, was not in force on
2.3.2001;
(iv). Essentiality certificate issued was valid exclusively for
Notification 516/86-Cus as amended;
(v). ONGC has been licensed to conduct Petroleum Exploration
on nomination Basis during 1988 to 1994 only;
(vi). the appellants had no contract with ONGC or Oil India or
the GOI or any State Govt. on 2.3.2001 for the import of Rig
Trident II for petroleum exploration operations; as per this
Certificate, the Appellant was a contractor of ONGC Ltd and was
not a sub-contractor; contract was executed on 2.5.1988 and
expired after 4 addendums on 15.2.1994.
(vii). Director General Hydrocarbons vide letter, dated
21.12.2001 to ONGC Ltd, categorically stated that, the
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Certificate is only for the purpose of Notification 516/86-Cus
and was subject to the condition that, neither party should avail
of double / dual benefit by virtue of the said Certificate.
16. Learned Authorised Representative submits that the Rig
has been classified under CTH 8905.20 and the Notification
17/2001-Cus (Sl. No. 247 read with Condition No. 49 and Sl. No
249 read with Condition No. 51)is also not applicable for the
following reasons.
(i). It applies only to Contracts between Government of India or
State Government with ONGC Ltd or Oil India Ltd; the Appellant
had no existing or past Contract with the Government of India.
(ii). it applies only to Contracts issued or renewed after
1.4.1999; in this case contract expired on 15.2.1994; Contracts
of ONGC are specifically covered by serial no. 250; the
appellants had only licenses to operate on certain blocks;
(iii). the Appellant, a foreign Company, is neither a Licensee a
defined in the Notification nor a 'Sub Contractor'; appellants are
contractors of ONGC Ltd and not of the Government of India or
any State Government; This condition applicable only for
contracts with Government of India not for contract with ONGC.
(iv) None of the conditions of Clause (c) of Condition 49 are
satisfied as there is no Affidavit or Undertaking or Certificate of
non-release of any foreign Currency/Foreign Exchange
remittance towards the import of the Rig, as prescribed.
17. Learned Authorised Representative submits that the
eligibility and thus the claim for a conditional exemption is a
question of fact and not of law; a ground of Appeal involving
even a pure question of Law cannot be entertained when the
matter has reached finality and has been decided by a Superior
Court; it has been so decided in Lindt Exports VS UOI 2016
(339) ELT 529 (Del.) (upheld in 2018 (361) ELT 283 (SC). He
submits further that the claim is barred by Limitation; refund
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claim was made on 05.05.2002 for duties which were paid on
02.03.2001; as per the provisions of Section 27 (as existed
during relevant period) of the Customs Act, 1962, any refund
claim was required to be made within 6 month of the date of
payment of duty.
18. Learned Authorised Representative submits that the issue
is Res Judicata; the Appellant had claimed the benefit of
Notification 516/86-Cus dated 30.12.1986, for the impugned Rig
in its Appeal filed before CESTAT in the year 2000; CESTAT, vide
Final Order dated 02.02.2001 (2001 (135) ELT 625 (T), denied
the benefit of Notification 516/86-Cus to the said Rig, as no
Certificate as required under the said Notification was procured
and observed that conditions of the notification need to be
strictly constructed, as held by the Apex Court in Bombay Oil
Industries Pvt. Ltd. Vs UOI 1995 (77) ELT 289 (SC); the said
order of CESTAT has been upheld by the Supreme Court ( 2005
(179) ELT A39 (SC).
Additional written submissions by the Learned Counsel
19. Learned Counselfor the appellants, in reply, to the
averments of the Authorised Representative, submits that
Section 125 (2) of the Customs Act 1962 does not create a fresh
liability to duty; it merely provides that where any fine in lieu of
confiscation of goods is imposed, the owner of such goods or the
person from whose possession the same are seized, shall in
addition be liable to any duty and charges payable in respect of
such goods; it provides that the fine in lieu of confiscation will
not be a substitute for the duty payable on the goods, but shall
be in addition to the duty payable on the goods; if the duty, at
the applicable rate, at the time of import, stood discharged, no
fresh duty liability is created by Section 125(2); in other words if
the goods at the time of import were eligible for duty exemption
under a Notification at the time of import, question of paying
duty under Section 125 (2) does not arise. He submits that
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Tribunal held, in the case of Jagson International Ltd Vs CC -
2017(357)ELT1264, that Section 125 of Customs Act, neither
specifies the authority to determine the duty nor it vests the
obligation in a 'proper officer'; Section 125 of Customs Act, 1962
does not empower determination or assessment; it cannot be
resorted except when duty has already been assessed and
foregone at the time of import; in the instant case, the rig
Trident-II was exempted from duty at the time of import, and
therefore, no duty remained to be payable; Tribunal, vide final
order (supra) in the first round of litigation, did not reject the
Appellants' claim for exemption under Notification No.516/86-
Cus dated 30-12-1986 on the ground that the Appellants cannot
claim exemption at the time of redemption of the Rig in 2001;
Tribunal rejected the claim on the ground that the Appellants did
not have the Essentiality Certificate stipulated in Notification
no.516/86 and gave liberty to the Appellants to pursue the
claim; in effect it follows that only if the Appellants failed to
obtain the Essentiality Certificate and thereby failed to comply
with the condition of Notification no.516/86, it would follow that
the Rig was not exempted from duty at the time of import and in
that event duty would become payable, at the rate in force on
the date of payment of duty as per Section 15 (1) (c) of the
Customs Act 1962. He submits that as the Appellants have
obtained the Essentiality Certificate, in terms of the liberty
granted by the Tribunal's judgment dated 2-2-2001, the question
of paying duty under Section 125 (2) does not arise.
20. Learned Counsel submits that the denial of exemption
under Notification No.516/86-Cus dated 30-12-1986, by the
adjudicating authority and the appellate authority, on two
grounds that the Notification expired on 31-12-1988 and that the
authority which issued the Essentiality Certificate is different
from that specified in Notification No.516/86, is not tenable in
law; it is contrary to the decision of the Supreme Court in the
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case of ONGC Ltd (Supra). Even otherwise, the very fact that the
Rig had been imported in connection with offshore oil exploration
itself resulted in accrual of a right to exemption in favour of the
Appellants and such right would survive even after the expiry of
the Notification, in terms of Section 159A of the Customs Act
1962, which provides that where a Notification is amended,
repealed, superseded or rescinded, the rights and liabilities
which accrued under such Notification would survive even after
such amendment, repeal, supersession or rescission. This view
was upheld by tribunal in Samay Electronics (P) Ltd v CCE -
2015 (328) ELT 238 and in Tonira Pharma Ltd v CCE - 2007
(208) ELT 38 further by Supreme Court in Shree Bhagwati Steel
Rolling Mills v CCE - 2015 (326) ELT 209.
21. The reliance placed by the authorized representative for
the department on the decision in Kumho Petrochemicals Co Ltd
Vs Union of India 2014 (306) ELT 3 (Del) is totally misconceived
since that decision was not concerned with rights and liabilities
which arose in respect of imports before the expiry of the
Notification but dealt with extension of the anti-dumping duty for
the period after the expiry of the Notification in respect of
imports made after the expiry of the Notification. In fact, Apex
Court observed that "A temporary Statute even in the absence of
a saving provision like Section 6 of the General Clauses Act may
not be construed dead for all purposes and the effect of expiry is
essentially one of the constructions of the Act". He submits that
even the "Principles of Statutory interpretation" by G.P. Singh
relied upon by the authorized representative of the department,
clearly states that expiry of a temporary statute does not make
it dead for all purposes and enduring rights and obligations
under the same would survive its expiry; in the present case
upon the import of the Rig for purpose of oil exploration at a
time, Notification no.516/86 which was in force, created an
enduring right to exemption from duty on the said Rig which
would survive the expiry of the Notification.
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22. Learned Counsel for the appellants further submits that
denial of exemption on the ground that DGH was not the
authority specified in notification no.516/86 also not tenable in
law; as the eligibility clause about the import of goods in
connection with off-shore oil exploration/ exploitation which is to
be strictly construed stands satisfied, the condition of the
production of Essentiality Certificate must be liberally construed;
in the facts of the present case, since the issue of payment of
duty itself was raised by the department after 1999 by which
time Notification No. 516/86 stood rescinded and the
Empowered Committed of the Ministry of Petroleum and Natural
Gas specified in the said Notification ceased to exist, the Ministry
of Petroleum and Natural gas examined the case in consultation
with IFD (Integrated Finance Division) who approved the issue
of EC on ex-post facto basis by the DGH who is the authority
under the Successor Notifications Nos.No.16/2000-Cus dated 1-
3-200 and No.17/2001-Cus dated 1-3-2001; Ministry of
Petroleum and Natural Gas has themselves clarified vide their
letter dated 26th July 2006 (p.195 of appeal) and that the
Ministry has pointed out that such EC had been issued in the
past also and there was no irregularity in issuance of such EC on
ex-post facto basis.
23. Learned counsel further submits that Reliance placed
on the case of CC Vs M. Ambalal & Co- 2010 (260) ELT 487 (SC)
is misconceived; department cannot say that since in the present
case the Rig has been held to be liable to confiscation under
Section 111 of the Customs Act 1962, it is not eligible for duty
exemption; Firstly, it is not the ground on which the exemption
has been denied by the adjudicating authority and the
Commissioner (Appeals); it is held in the case of Prince Khadi
Woollen Handloom Products Cooperative Industrial Society Vs
CCE - 1996 (88) ELT 637 (SC) that at the appellate stage before
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C/19/2008
the Tribunal, the benefit of exemption Notification cannot be
denied on a new ground which was not originally contended by
Revenue; Secondly, M. Ambalal & Co case relates to town
seizure of Diamonds in respect of which the person from whom
the diamonds were seized could not offer any satisfactory
explanation nor produce any documents in relation to their licit
import; in these facts, the Hon'ble Supreme Court held that it
cannot be said that the conditions of the exemption notification
were satisfied and therefore the exemption was denied; in fact
Supreme Court held in the same judgement (at Para 10) that a
beneficial exemptions having their purpose as encouragement or
promotion of certain activities should be liberally interpreted.
Learned Counsel submits that the present case was not one of
clandestine import of the Rig; on the contrary the Rig was duly
manifested in the Import manifest of the vessel which towed and
brought the rig into India and even the customs permitted the
rig to go for offshore oil exploration activities without requiring
the filing of the Bill of Entry; that apart, the Ministry of
Petroleum has issued the Essentiality Certificate certifying that
the rig has been imported for the purpose of offshore oil
exploration and it therefore follows that the requirements of the
exemption Notification are fully satisfied; beneficial exemptions
issued in national interest to promote oil exploration projects of
national importance, for which the Rig has been imported, must
be construed liberally; unlike in the case of M. Ambalal & Co-
customs has subsequently permitted filing of Bill of Entry and the
Bill of Entry has been filed and assessed.
24. Learned counsel further submits without prejudice that as
an alternative, exemption under Notification No.17/2001-Cus
dated 1-3-2001, is available; Sr.No.249 of the said notification
grants exemption to Goods specified in List 19 required in
connection with petroleum operations subject to condition
No.51.; Sr.No.2 of List 19 of the condition No.51, covers all rigs
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C/19/2008
if imported either by a contractor under contract with
Government of India or a sub-contractor of the contractor in
connection with petroleum operations, a Certificate from the
Director General of Hydrocarbons was required to the effect that
the imported goods are required for petroleum operations; in the
present case the import was in the year 1988 at which time the
operations were carried on pursuant to Petroleum Exploration
License granted by the Government to ONGC; he submits
information downloaded from the website of Ministry to show
that prior to 1991, Petroleum Exploration License was granted to
ONGC; thus, the original contract/ license is between the
Government of India and ONGC and ONGC in turn sub-
contracted to the Appellants; in respect of the import in
question, the Director General of Hydrocarbons has issued the
necessary certificated certifying that the said rig was required for
petroleum operations; the Appellants are therefore, in any
event, entitled to the exemption under Notification No.17/2001-
Cus even if it is held that the Appellants are not entitled to
exemption under Notification No.516/86; it is held by the
Hon'ble Supreme Court in Share Medical Care v UOI- 2007 (209)
ELT 321 (SC) that an alternative claim for exemption notification
can be made at a later stage even if not claimed earlier. He
submits that Revenue's reliance on principle of res judicata
stating that the claim was not made before; firstly, this is not
the ground on which the adjudicating authority and the
Commissioner (Appeals) has denied the exemption; as held by
Apex Court in Prince Khadi Woollen Handloom Products
Cooperative Industrial Society (supra), benefit of exemption
Notification cannot be denied on a new ground, at the appellate
stage before the Tribunal, which was not originally contended by
Revenue; secondly, Supreme Court held in ITC v CCE - 2004
(171) ELT 433 (SC),that the foundation of the plea of res
judicata must be laid in the pleadings and cannot be raised for
the first time at the stage of the appeal and thirdly, the Tribunal,
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C/19/2008
in the final order dated 2-2-2001, granted leave to the
Appellants to pursue the claim for exemption after obtaining the
Essentiality certificate.
25. On the claim of the revenue that as per letter, dated 5-4-
1988, from the Government of India to ONGC, conveying
sanction of foreign exchange for charter hire of rig from the
Appellants, condition 51 of Notification no. 17/2001-Cus was not
satisfied, learned Counsel submits that sanction of foreign
exchange was not for the import of the rig but was for hire
charges to be paid during the period of operation of the rig in
India; condition No.51 bars remittance of foreign exchange for
import of the rig; this condition is satisfied since the Essentiality
Certificate clearly states no foreign exchange is remitted for the
import of the rig. Replying to the contention by the authorized
representative that the exemption should be denied to the
Appellants since the same was not claimed in the Bill of Entry
filed on 20-2-2011,learned counsel submits that this contention
also is not tenable in terms of untenable in law in view of the
fact that neither the adjudicating authority nor the first appellate
authority denied the exemption on this ground and as such it
cannot be denied by Tribunal now as held by Apex Court in
Prince Khadi Woollen Handloom Products Cooperative Industrial
Society (supra); moreover, the appellants while filing the bill of
entry clearly stated, vide letter dated 20-2-2001, that the duty
was being paid without prejudice to the Appellants' rights and
contentions; in terms of the liberty granted by the Tribunal, the
Appellants reserve their right to claim refund of the duty after
obtaining the essentiality certificate.
26. Heard both sides and perused the records of the case.
Brief issue that requires consideration by us in the instant case is
as to whether the Rig trident (ii) imported in April 1988 would be
eligible for the benefit of Notification No. 516/86 dated
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C/19/2008
30.12.1986 on the strength of the essentiality certificate issued
on 21.12.2011 much after the validity of the notification.
27. Learned Counsel for the appellants submit that denial of
exemption under the notification cited above on the ground that
the essentiality certificate dated 21.12.2001 was issued after
rescission of the said notification on 31.12.1988 is contrary to
the decision of the Hon'ble Supreme Court in the case of ONGC
Ltd. 2006 (201)ELT 321 (SC); denial of exemption notification on
the ground that Director General Hydrocarbons was not the
authority specified in the Notification No.516/86 is not tenable
under law. The contention of the appellants is mainly that the
substantive condition of the notification has been fulfilled to the
extent that the imported Rig has been used in connection with
the off-shore oil exploration and there is no dispute on this fact.
Learned Counsel for the appellants submits that Hon'ble
Supreme Court has also followed the same principles in the case
of CC Vs Tullow India Operations- 2005 (189) ELT 401. Learned
Counsel for the appellants also submits that Tribunal has
followed the decision in the case of Jagson International Ltd.
2006 (199) ELT 553. Learned Counsel for the appellants also
submits that even if it is considered that the exemption under
notification No.516/86 is not available, alternatively, exemption
under Notification No.17/2001-Cus dated 01.03.2001 is
available. Learned Counsel for the appellants also submits that
Section 125(2) of the Customs Act, 1962 does not create a fresh
liability to duty; in terms of Section 159A of the Customs Act,
1962, the Notification cannot be denied only for the reason that
the same is rescinded.
28. On the other hand, learned Authorized Representative for
the Department submits that CESTAT had already confirmed the
demand of duty vide Order dated 02.02.2001; the said order
was confirmed by the Apex Court also. Learned Authorized
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Representative submits that the cases of ONGC and Tullow India
Operations (supra) relied upon by the appellants would not be of
any help to the appellants as the facts in those cases are
different to the extent that the applications for essentiality
certificates were made before filing of the Bills of Entry whereas
in the case of the appellants no such application has been made
before the Bill of Entry and that actually, the application was
made after the Bill of Entry is finally assessed; the appellants
did not have license to import the second-hand capital goods.
Learned Authorized Representative submits that the impugned
Rig is, in fact, smuggled as held by CESTAT 2001(135) ELT 625
(Tri.)and as such the benefit of Notification would not be
applicable; Hon'ble High Court of Bombay has endorsed this
opinion; further Apex Court in the case of Aban Loyd Chiles Off-
Shore Ltd. 2017 (346) ELT 513 (SC) held, in similar facts of the
case, that the Rig is confiscable under Section 111 of Customs
Act, 1962. Learned AR submits that Hon'ble Supreme Court in
the Arbitration Petition No.01/2006 decided that ONGC is liable
to reimburse the amount of Customs duty to the appellant.
Learned AR further submits that the Notification No.516/86 is a
temporary legislation valid only till 30.11.1988 and no claim of
benefit can be made after the date; no vested right accrued to
the appellant under the Notification; Notification No. Learned AR
further submits that the essentiality certificate was not issued by
the prescribed authority is nonest, ab initio void and hence not
valid. Learned AR further submits that the claim for refund is hit
by limitation and the bar of unjust enrichment. Alternative plea
for Notification No.17/2001 is not applicable as the same applies
to contracts issued or renewed after 01.04.1999 whereas in the
impugned case, the contract expired on 15.02.1994.
29. We find that the appellants have heavily relied upon the
cases of ONGC, Tullow India and Jagson International (supra).
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C/19/2008
We find that the factual matrix in these cases and the
observations of the Court are as under:
(i) In the case of ONGC, we find that the essentiality certificate
was applied for before the filing of Bill of Entry. Hon'ble Supreme
Court observed as follows:
12. The Appellant is a public sector
undertaking. The exemption notification inter alia
was issued in its favour by the Central
Government. It may be true on that on the date
when the goods were provisionally cleared the
Appellant did not have he essentiality certificate
with it, but this Court in its judgment dated 28th
October, 2005 [since reported in (2005) 13 SCC
789] categorically held that in a case of this
nature, unless a final order of assessment is
passed, production of a delayed essentiality
certificate may not come in the way of the
importers obtaining the benefit of the exemption
notifications.
-----
13.....
14.......The factual events as noticed hereinbefore clearly show that the Appellant's application for grant of essentiality certificate b the Directorate General of Hydrocarbons was not entertained in absence of renewal of the licence. The application was returned only for that purpose. The Appellant filed its application for grant of essentiality certificate within two days from the date of grant of the licence with retrospective effect and then thereafter sent several reminders. The conduct of the Appellant must, therefore, be judged from the factual matrix obtaining therein. We, therefore, are unable to agree with the opinion of the learned Commissioner that the Appellant made any misrepresentation before this Court or that the Directorate General of Hydrocarbons had shown any favour to it. Once it is held that the Ministry of Petroleum had renewed the licence and the Directorate General of Hydrocarbons had issued the essentiality certificate, the conditions precedent for obtaining exemption in terms of the exemption notification stood fully satisfied.
(ii) In the case of Tullow India (supra) Hon'ble Court observed that:
10. However, it is also not in dispute that ONGC had applied for grant of exemption certificate before the Directorate General of Hydrocarbons in the month of April, 1999. The said essentiality certificate, however, could not be
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C/19/2008 produced before the appropriate authority when importation took place as the same had not thence been granted as a result whereof a provisional clearance of the said tapes was made on 6th September, 1999. The appeal there against before the Tribunal came to be dismissed in December, 2003. Essentiality certificate, however, was granted in favour of ONGC on 23.06.2004.
----
23. Both the importers are licensees. Indisputably, they were entitled to the benefit of the exemption notification subject, of course, to the condition that they would produce the essentiality certificate granted by the Directorate General of Hydrocarbons at the time of importation of goods. Grant of essentiality certificate was not in the hands of the assessees. It was a function of a department of the Central Government. The essentiality certificate admittedly was not granted by the Directorate General of Hydrocarbons within a reasonable time. The importers could not be blamed therefore. It is possible that delay in granting the said essentiality certificate was by of default on the part of the authorities concerned.
----
39. Furthermore, it is also well-settled that the Legislature always intends to avoid hardship. In a situation of this nature, the exemption notification cannot be construed in a way which would prove to be oppressive in nature. However, we do not intend to lay down a law that delay on the part of the authorities in granting such certificates would automatically enable an assessee to obtain refund. Each case has to be judged on its own facts.
30. On going through the above judgments, we find that the facts of the case are not similar. In the above cases, the appellants therein have applied for the essentiality certificate at the time of filing of the Bill of Entry though they were not in the possession of the same at the time of import. It can be seen from the observations of the Hon'ble Court even in the very above case that each case has to be judged on its own facts. In the instant case, the impugned goods were imported in 1988 and the goods were seized and such seizure was upheld by this Bench and was affirmed by the Apex Court. The appellants were not in the possession of the essentiality certificate at the time of import or at the time of filing of Bill of Entry; the essentiality
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C/19/2008 certificate was applied and issued at a much later date after the expiry of the Notification and there too by a different authority which was not prescribed under the Notification claimed. Therefore, the facts of the cases referred are different and therefore any reliance placed upon them would not lead to a correct decision. Learned Counsel for the appellants argued that in the case of Jagson International (supra)the Principal Bench held that though essentiality certificate was issued in May, 1999, it was sufficient to cover the Rig imported in April, 1993. We have gone through the case. We find that the facts of the case therein are also different inasmuch as the classification of the Rig was in question along with the issue of essentiality certificate. In that case the impugned goods were not under seizure; though the issue of certificate was delayed, the application and claim of the notification were in time.
31. We find that the facts of the case before us are comparable to the case of Jindal Drilling and Indus Ltd. 2001 (138) ELT 1335.The Principal Bench observed in this case as follows:
20. But the factual background in this case is totally different.
There was no Bill of Entry filed by the importer before removal of the goods as in all cases of this nature relied upon by the appellants. The goods, (qua dutiable cargo) were removed without permission of the proper officer on 17/18-4-1998 as already found by us. They had not applied for essentiality certificate before removal of the goods. They were fully aware about the terms of the notification. Such a condition was available in predecessor Notification 334/88-Cus. Which was rescinded w.e.f. 1-1-1989. They were desperately trying with the Central Govt. to revive the notification as is apparent from a spate of representations to various authorities annexed with the appeals. They also succeeded in getting the notification 134/89- Cus, issued, yet they did not follow its terms. It is obvious that they had other intentions, as already found, and executed them as well. But then, it appears, 1st appellants had a change of heart, perhaps because of the fear of enormity of penalty and punishment devolving on them. Operation cover-up i.e. applying for essentiality certificate and for amendment of IGM and filing of
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C/19/2008 Bill of Entry, etc. was initiated. They no doubt, succeeded, by getting the Bill of Entry (Filed later) assessed as duty free in October 1989. But this action cannot have the effect of wiping away the illegality already committed by them. In the face of this factual situation and on the plain terms of the notification, they would not have been entitled to the refund of duty, even if they had been detected on 17/18-4-1998 and made to pay duty on removal of the goods from customs area. Benefit of the notification could not be and cannot be extended to the appellants.
32. We find that Notification No.516/86 grants exemption subject to the following conditions:
(i) the importer produces a certificate in each case from an officer not below the rank of Deputy Secretary to the Government of India in the Ministry of Petroleum and Natural Gas to the effect that the goods imported are of a type and kind required for off-shore oil exploration or exploitation and will be used for such purposes; and
(ii) the importer produces a certificate issued by a duly authorised officer of the Directorate General of Technical Development certifying that the goods in respect of which the exemption claimed are such as are not manufactured in India.
We find that in terms of the above Notification, essentiality certificate was required to be issued by an officer not below the rank of Deputy Secretary to the Government of India in the Ministry of Petroleum and Natural Gas. However, in the instant case, the certificate has been issued by Deputy General Manager (EC)Director General of Hydrocarbons, Ministry of Petroleum and Natural Gas, New Delhi. From the records of the case, we find that as on the date of issue of the certificate, no empowered committee was in existence. We find force in the argument of the learned Authorized Representative for the Revenue that the Notifications are placed before the Parliament for approval and as such have the same force as that of legislation. If the legislature, which approved the Notification, prescribes that a particular authority is empowered to issue a certificate, the
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C/19/2008 officers of the Ministry have no power to change the same and therefore, the certificate issued by a different authority even though authorized by the same Ministry unless due sanction of the legislature is obtained. We find that no such approval has been obtained. We find that Hon'ble Apex Court in the case of Orient Weaving Mills (P) Ltd. Vs UOI 1978 (2) ELT j311 (SC) and in other cases observed that "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all". Therefore, we do not find any merit in the appellant's claim that the essentiality certificate being issued their eligibility to the exemption notification is established. We also find that Hon'ble Apex Court held in the case of CC, Import Mumbai Vs Dilip Kumar & Company, 2018 (361) ELT 577 (SC) had held that notification should be strictly interpreted and the conditions of the notifications should be strictly complied with. This leaves no doubt whatsoever in our minds that the appellants have not complied with the conditions of the Notification No.516/86 and hence are not eligible to avail the exemption contended.
33. Moreover, we find as per the discussion above, that unlike in the cases cited by the appellants in their favour, the facts of the impugned case are different. In the instant case, the Bill of Entry was not filed; essentiality certificate was not applied for at the time of import. The impugned Rig was seized and such seizure was held by this Bench and was affirmed by the Apex Court. The Bill of Entry was filed on 02.03.2001 and the Bill of Entry was finally assessed. In the cases cited by the learned counsel for the appellants, the assessments were provisional and the certificates were produced before finalization of the assessment. In that context, the Hon'ble Apex Court found that delayed submission of essentiality certificates, for which the applications have already been made by the respective parties, would not take away the right to exemption claimed. Moreover,
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C/19/2008 in the impugned case the appellants neither applied for the essentiality certificate nor were in the possession of the same at the time of import. The impugned rig was seized for various violations and the same was upheld by this bench and affirmed by the Apex Court. The impugned goods herein have the taint of being smuggled. Therefore, the same cannot be treated to be normal imported goods as in the cases relied by the appellants.
34. Learned Counsel for the appellants argues that this Bench has left, the issue of essentiality certificate, open. We find that this Bench vide Final Order No.303-309/2001 dated 02.02.2001 has observed that:
47. It is settled law that terms of the exemption have to be strictly complied with (See Bombay Oil Industries Vs UOI- 1995 (77) ELT
32). It is not possible to proceed to accept the eligibility of the notification on the assumption that these two certificates would have been issued.
While denying the benefit of the exemption, we leave it open to the importer to pursue this claim, if it is so advised.
34. Though the Bench appears to have kept the pursuit of essentiality certificate by the appellants open, it has been categorically held that one of the conditions is incapable of being fulfilled. This Bench observed that
45. The contention that the rig in question could be imported under the provisions of OGL No. 8 of 88, is not acceptable. One of the conditions of this OGL is that the import is made in pursuance of the service contract awarded to a foreign contractor, the ONGC, Oil India, or Gas Authority of India Ltd. undertakes, that such equipment shall be re-exported after completion of the work. No such undertakings having been furnished by ONGC, this condition is not satisfied. Further, the rig, in any case, has not been re-exported after completion of the contract with ONGC. This condition is therefore incapable of being fulfilled.
35. Ongoing through the above order, it appears that the Bench's observation that the importers may pursue the certificate, if so advised, it was also categorically mentioned that one of the conditions is incapable of being met. It can be further seen that this Bench has not conferred any right to the appellant and have not also stated that
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C/19/2008 the essentiality certificate needs to be accepted even though it is not issued by the authority designated in terms of the impugned Notification and even after the Bill of Entry is finally assessed. Therefore, we find that the freedom given by this Bench is to be understood in the backdrop of the general tenor of the order and it has to be to be limited subject to the fulfilment of the conditions of the notification. Therefore, we are of the considered opinion that the argument of the appellants on this count cannot come to the rescue of the appellants.
36. Learned AR for the Department also submits that the refund by the appellants is barred by limitation, as the Bill of Entry was assessed on 02.03.2001 and refund claim was made on 05.05.2002, under Section 27 of Customs Act, 1962; refund claim is hit by unjust enrichment in view of the Arbitration Petition filed by the appellants before the Apex Court. Appellants however, did not submit anything on this. We find that the issue of Refund is not before us. These arguments, in view of the same, become superfluous and thus, we are not inclined to make any observations on the issue of limitation or unjust enrichment.
37. The appellants have made the alternate claim of exemption under Notification No.17/2001. We find that as submitted by the learned AR, as per Sl. No. 247 read with Condition No.49 of the Notification, the exemption is available if:
(a). It applies only to Contracts between GOI or State Govt. with ONGC Ltd. or Oil India Ltd.
(b). It applies only to Contracts issued or renewed after 01.04.1999 in this case contract expired on 15.02.1994.
(c). Contracts of ONGC are specifically covered by serial no.250.
38. We find from the records of the case that the conditions of the Notification are also not satisfied, even assuming that the conditions of Notification existing as on the date of filing the Bill of Entry would have to be satisfied. Therefore, we do not find merit in the alternate claim also. We further find that learned AR for the Department has submitted various arguments based on the contracts with ONGC and others; on the release of foreign exchange etc and similarly, learned
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C/19/2008 counsel for the appellants has also submitted on various submissions in the matter. We find that those arguments are not of much relevance as we find that the claim of the appellant is otherwise not maintainable for the reasons discussed above.
38. In view of the above, we are of the considered opinion that the appeal is devoid of any merit and is liable to be set aside. Accordingly, we dismiss the appeal and uphold the impugned order.
(Pronounced in Court on 11.01.2022) (S.K. Mohanty) Member (Judicial) (P. Anjani Kumar) Member (Technical) //SR