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ONGC Ltd. Through ED-COED Versus CC, New Delhi

Import of software for Seismic purposes - Denial of the benefit of Notification No. 21/2002-Cus. dated 1.3.2002 - importation of the identical goods by the assessee - Held that:- Item imported by the appellant in this case is similar to the item imported in the case of Tullow India Operations Ltd. (2005 (10) TMI 502 - SUPREME COURT OF INDIA) i.e. IT software and also observed that in this case the item imported by the appellant is squarely covered by item No. (1) of Schedule 12 attached as per S .....

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nefit of the said notification. - Decided in favour of assessee. - Appeal No. C/625/2009-CU(DB) - F. Order No. 51787/2015 - Dated:- 3-6-2015 - Hon ble Mr. Ashok Jindal, Member (Judicial) And Hon ble Mr. R.K. Singh, Member (Technical),JJ. For the Appellant : Shri T. R. Rustogi, Advocate For the Respondent : Shri B.B. Sharma, D.R. ORDER Per Ashok Jindal : The appellant is in appeal against the impugned order denying the benefit of Notification No. 21/2002-Cus. dated 1.3.2002. The facts arising out .....

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Sr. No. 214. The said benefit of notification was denied by the lower authorities, therefore, appeal is before us. 2. The ld. Counsel for the appellant submits that to claim the benefit of Notification No. 21/2002-Cus. dated 1.3.2002, Sr. No. 214 the appellant is required to fulfil the condition No. 29(b) and as per the said condition if the appellant produced a certificate from duly authorised officer of Directorate General of Hydro Carbons in the Ministry of Petroleum and Natural Gas, Govt. o .....

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also submits that a similar issue came up before the Hon ble Apex Court in the case of CC, Mumbai Vs. Tullow India Operations Ltd. 2005 (189) ELT 401 (SC) wherein the benefit of Notification No. 121/99-Cus dated 28.2.99 was sought for importation of the identical goods by the assessee and Hon ble Apex Court allowed the benefit of notification. Further, the said notification is identical to the Notification No. 21/2002-Cus. dated 1.3.2002 at Sr. No. 214. He also relied on the decision of the Hon .....

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ppellant is entitled to avail the benefit of Notification No. 21/2002-Cus. dated 1.3.2002 Sr. No. 214 or not. 7. For better appreciation, the relevant entries of the said notifications are extracted here as under : Table S. No. Chapter or Heading or sub - heading Description of goods Standard rate Additional duty rate Condition No. (1) (2) (3) (4) (5) (6) 214. 84, or Goods specified in List 12 required Nil Nil 29 , Any other in connection with petroleum operations , Chapter undertaken under petr .....

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fficer of the Directorate General of Hydro Carbons in the Ministry of Petroleum and Natural Gas, Government of India to the effect that the imported goods are required for petroleum operations referred to in clause (a) and have been imported under the licences referred to in that clause. 8. On examination of the said notification, we find that to claim the exemption at Sr. No. 214, the appellant is required to produce a certificate from duly authorised officer of Directorate of Hydro Carbons, in .....

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rior to 2002, Notification No. 20/99-Cus. dated 28.2.1999 was in force and Sr. No. 184 governs the importation of the items in question for availing the benefit of the said notification. The issue whether the assessee is entitled to take the benefit of said notification on the identical item cam before the Hon ble Apex Court in the case of Tullow India Operations Ltd. (supra), wherein the Hon ble Apex Court has observed as under : 23. Both the importers are licensees. Indisputably, they were ent .....

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s could not be blamed therefor. It is possible that delay in granting the said essentiality certificate was by way of default on the part of the authorities concerned. 25. Construction of an eligibility clause contained in an exemption notification depends inter alia upon the purpose for which an exemption is sought to be granted. The exemption notification was issued by the Central Government in exercise of its power conferred upon it under sub-section (1) of Section 25 of the Customs Act. An e .....

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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 the Mini .....

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ch importations are being made in public interest, would not dispose of the application for grant of essentiality certificate within a reasonable time so as to enable the importer to avail the benefit thereof. Applicants for grant of such certificates, having regard to their importance, should have been processed by the Directorate General of Hydrocarbons as expeditiously as possible but they did not choose to do so probably having regard to the fact that no time schedule therefor was prescribed .....

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the exemption notification. 36. The principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed liberally. An eligibility criteria, therefore, deserves a strict construction, although construction of a c .....

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le Apex Court in appellant s own case (supra) wherein the Hon ble Apex Court observed as under : 7. The matter came up before this Court at the instance of the Appellant. It filed an application for urging additional grounds inter alia relying on or on the basis of the said Essentiality Certificate granted in its favour on 26-3-2004. This Court, opining that grant of essentiality certificate should be treated to be a proof of the fact that the Appellants had fulfilled the conditions enabling the .....

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ht. [See D. Nataraja Mudaliar v. The State Transport Authority, Madras, AIR 1979 SC 114] The Appellant applied for grant of renewal of the said licence before its expiry. The said renewal has been granted with a retrospective effect. In law, thus, the Appellant had been holding a valid licence continuously. The factual events as noticed hereinbefore clearly show that the Appellant s application for grant of essentiality certificate by the Directorate General of Hydrocarbons was not entertained i .....

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resentation 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. 15. This Court, times without number, has construed such exemption notifications in liberal manner. [See Commissioner of Custom .....

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