TMI Blog2005 (10) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... tuated in a State, the effect and purport of statutory notification can be taken away. In terms of Section 151A of the Customs Act, it is only the Board which may issue instructions.Having regard to the facts and circumstances of this case, we are of the opinion that the Tribunal has committed no illegality in remitting the matter back to the Commissioner. Civil Appeal dismissed. - Civil Appeal Nos. 5900 of 20041 with C.A. Nos. 1882 of 2004 and 854 of 2005 - - - Dated:- 28-10-2005 - B.P. Singh and S.B. Sinha, JJ. Shri A.K. Ganguly, Rajiv Dutta and S. Ganesh, Sr. Advocates, K. Swamy, S. Beno Beneigar, P. Parmeswaran, Shiv Prakash Pandey, Ms. Rekha Pandey, P. Pandey, Rohitash S. Nagar, V. Lakshmikumaran, Alok Yadav, Rajesh Kumar and R.S. Suri, Advocates with them for the appearing parties. JUDGMENT Interpretation of notification issued in terms of sub-section (1) of Section 25 of the Customs Act, 1962 being General Exemption No. 121 is in question in these appeals which arise out of judgment and order dated 9-12-2003 passed by the Customs, Excise and Service Tax Appellate Tribunal in Appeal No. C/1210/Mum. C/51/2002/Mum. 2. The relevant portion of the said general e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oftware, and (ii) Document of title conveying the right to use Information Technology software. Explanation. - Information Technology Software means any representation of instructions, data, sound or image including source code and object code, recorded in a machine readable form, and capable of being manipulated or, providing interactivity to a user, by means of an automatic data processing machine. 4. Relevant portion of Condition Nos. 34 and 36 annexed to the said notification read as under :- 34. If (a) the goods are imported by the Oil and Natural Gas Corporation or Oil India Limited (hereinafter referred to as the licensee ) or a sub-contractor of the licensee and in each case in connection with petroleum operations to be undertaken under petroleum exploration licences granted by the Government of India on nomination basis; (b) where the importer is a licensee, he produces to the Assistant Commissioner of Customs, at the time of importation, the following, namely, certificate from a duly authorized officer of the Directorate General of Hydro Carbons in the Ministry of Petroleum and Natural Gas, Government of India, to the effect that the imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic tapes and converted to digital form and thereafter processed at the Processing Centre using software applications named Seismos. The Central Processing Centre is located on Indian territory and, these tapes in the form of cartridges are imported by the assessees who claim exemption from customs duty in terms of the aforementioned exemption notification. The same tapes were claimed to be IT softwares. 7. It is not in dispute that ONGC awarded two contracts in favour of M/s. SEDCO Forex Int. Drilling Inc. to carry out the said seismic survey on or about 15-2-1999 and 9-3-1999 respectively for a consideration of US $ 13,803,600 and US $ 2,96,230 respectively. In pursuance of the said contracts, a seismic survey vessel namely, M.V. GECO SAPPHIRE was brought in India by the said contractor for carrying out seismic survey. The said seismic survey vessel carried out seismic survey during the period 22-5-1999 and 22-6-1999. The two Bills of Entry No. BOE NO. 12443 and 9888 were filed. 8. A notice to show cause was issued by the Customs Department, Mumbai asking the ONGC to show cause as to why : (a) 3-D seismic data tapes should not be classified under CTH 8524.99 and charged to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the benefit of exemption from duty on imported goods contained in the notifications should not be denied merely on the ground that the certificates were required to be produced at the time of importation only, dismissed the appeal of the ONGC on the ground that the same had not been produced even before it and allowed the appeal of Tullow and remitted the matter back to the Commissioner for his consideration as regards acceptability thereof and consequently upon the availability of the exemption and related matter. 13. ONGC and the Commissioner of Customs, Mumbai are, thus, in appeal before us. 14. ONGC before this Court, filed an application for urging additional grounds before this Court that it may be permitted to rely upon the said essentiality certificate dated 23-6-2004. 15. It also filed an application before the Tribunal praying for recall of the said order dated 27-9-2001 relying on or on the basis of the said certificate, but the same was rejected on the ground that the matter is pending before this Court. An appeal has been filed thereagainst also by ONGC. 16. The learned Counsel appearing on behalf of the ONGC would raise three contentions in support of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of importation, triggering event cannot be shifted to a later date. It was submitted that if it be held that production of such certificate at any point of time is considered to be sufficient compliance for the purpose of obtaining benefit under the said exemption notification, the same will have to be read in the manner that it was not necessary to be produced at the time of importation. Even if such a construction is possible, the learned Counsel would contend that the same should be produced only within a reasonable time, particularly, in view of the fact that the exemption notification was valid for one year. 20. As regard public notice issued by the Madras Custom House, the learned Counsel urged that one issued by a particular Custom house cannot be equated with the circular issued by the Board in exercise of its statutory power under Section 151A of the Customs Act. The exemption notification being a statutory one cannot be clarified by one custom house as the same must emanate from a notification issued by some authority. 21. Mr. Ganguly argued that the Customs Act makes a difference between the certificates which are conditions precedent and those which are conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. An exemption thereunder is granted, if the Central Government is satisfied that it is necessary so to do in public interest. Such exemption can be granted either absolutely or subject to such conditions, as may be specified therein. Such conditions are required to be fulfilled before or after clearance as may be specified. Such exemption would be in relation to the goods of specified description from the whole or any part of duty or customs leviable thereon. 26. Serial Nos. 182 and 184 of the notification refer to the goods falling under Chapter 84 and specified in List 11 required in connection with petroleum operations undertaken by a licensee. 27. ONGC is a licensee for exploration of petroleum products. ONGC has specifically been mentioned at Serial No. 182 of the said notification. It is not in dispute that importation, if any, has been made in connection with petroleum operations to be undertaken under petroleum exploration licenses granted by the Government of India on nomination basis. The benefit of exemption notification would inter alia be available to the licensee if it is shown in terms of a certificate granted by the Directorate General of Hydrocarbons and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble it from obtaining the benefit therefrom for all times to come. 31. It is no doubt true that the fiscal liability has to be certain. There cannot, however, be any doubt that in a case of this nature ONGC being a government company for all intent and purport was also certain that it would get the requisite exemption, subject of course, to its fulfilling the condition of obtaining such essentiality certificate. 32. There is no universal law, as was suggested by Mr. Ganguly, that fiscal liability cannot be deferred. In a statute where there is a provision for a provisional assessment and/or provisional clearance, subject to compliance of certain conditions, such conditions may be fulfilled at a later stage, namely, at the stage of final clearance or final assessment. 33. The question may be considered from another angle. The Directorate General of Hydrocarbons was indisputably aware about the existence of such exemption notification. The certificate in accordance with law has not only been granted, the same expressly refers to the exemption notification, the entry of the table, the relevant clauses applicable therefor also the bills of entries dated 22-5-1999 and 22-6-1999. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a liberal meaning. 37. The decision of this Court in Jindal Drilling and Indus Ltd. (supra), relied upon by Mr. Ganguly has no application to the facts and circumstances of the instant case. 38. It is true that ordinarily, the golden rule of literal interpretation must be given effect to. But it is also well-settled that where literal interpretation gives rise to an anomaly of absurdity; the same should be avoided. [See Ashok Lanka and Another v. Rishi Dixit and Others - (2005) 5 SCC 598]; Colgate Palmolive (India) Ltd. v. MRTP Commission and Others - (2003) 1 SCC 129]. 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. 40. We, however, do not agree with the contention of Mr. Lakshmikumaran that by reason of a public notice issued by a Custom House situated in a State, the effect and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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