TMI Blog2011 (5) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... ter in the present case - DGH could not have cancelled the Certificate on the ground that the benefit of the Notification is not available to the importer since Condition No.29(c) of the Notification No.21/02 is not fulfilled in the present case, the benefit of Notification No.21/02 would not be available - if the imports were made on permanent basis so as to use the imported goods not only for the approved ONGC project but also for other projects, then the benefit of the Notification would not be available - So long as the goods imported by the petitioner No.2 are required for petroleum operations and are in fact used by the petitioner No.1 for the petroleum operations, the question of canceling the Essentiality Certificate does not aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1 (Larsen Toubro Limited) as a subcontractor for executing the petroleum project. At the instance of the petitioner No.1, the ONGC through the Customs sought the Essentiality Certificate for import of certain goods required for petroleum operations from the DGH, so that clearance of the above goods could be obtained at Nil rate of duty as per Notification No.21/02 dated 132002. 6. The DGH issued the Essentiality Certificate on 6122010 specifically recording therein that the goods in question are required for petroleum operations undertaken by the ONGC. The said certificate further records that the petitioner No.1 is the subcontractor appointed by the ONGC for executing the petroleum project and that the petitioner No.2 (L T Sapur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate dated 6122010, mainly on two grounds, firstly, neither the ONGC nor the petitioner No.1 could produce in their replies any document to show that the petitioner No.2 was the subcontractor of ONGC; and secondly the Officer of ONGC had stated that the petitioner No.2 has not been evaluated as subcontractor of petitioner No.1 for any installation activity by the ONGC. Therefore, the petitioner No.2 cannot be termed as a bona fide subcontractor of ONGC and consequently the benefit of Exemption Notification No.21/02 would not be available and, hence, the Essentiality Certificate dated 6122010 is liable to be canceled. 12. The reasons recorded for canceling the Certificate are wholly unsustainable in law. The obligation cast upon the DGH i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of the Notification is available to the importer or not, is a question to be considered by the Customs Authorities and not by the DGH. Therefore, the DGH could not have cancelled the Certificate on the ground that the benefit of the Notification is not available to the importer. 14. It was contended by Mr.Jetly, learned Counsel for the Revenue that since Condition No.29(c) of the Notification No.21/02 is not fulfilled in the present case, the benefit of Notification No.21/02 would not be available. We see no merit in the above contention, because, firstly, assuming there is any violation of the Conditions imposed in the Notification No.21/02, it was for the Customs to take up the issue in the assessment proceedings. The Customs Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be the owner of the imported goods and if not, what would be the consequences, is a question to be considered by the Customs authorities at the time of final assessment of the Bill of Entry. But that cannot be a ground for cancelling the Essentiality Certificate. 16. The contention of Mr.Jetly that the ONGC has evaluated the petitioner No.1 as the subcontractor and not evaluated the petitioner No.2 is also without any merit, because, it is nobody s claim that the petitioner No.2 is the subcontractor of ONGC and consequently there is no question of evaluating the petitioner No.2. The fact that the importer petitioner No.2 is not the subcontractor of ONGC may be a relevant factor for the Customs while considering the applicability of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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