2022 (4) TMI 788 - AT - Customs

Benefit of concessional rate of duty - Sr. No. 215 of Notification 21/2002-Cus dated 1-3-2002 - essentiality certificate issued by the Director General of Hydrocarbon, Ministry of Petroleum and Natural Gas with post import condition of use in the said project of ONGC - illegal diversion to local market - HELD THAT - No doubt that the tribunal can decide the present disputed question of facts as a final fact-finding authority. However, since the disputed matter in appellant s own case is pending before the Hon ble Gujarat High Court, we are of the opinion that the matter needs to be re-considered on the basis of the outcome of the decision of Hon ble Gujarat High Court in the above tax appeal. Matter remanded to original adjudicating authority for passing a fresh order after the outcome of the decision of Hon ble Gujarat High Court - appeal allowed by way of remand.

Issues Involved:
1. Compliance with conditions of exemption notification.
2. Denial of exemption for surplus goods.
3. Confiscation, duty demand, and penalties.
4. Pending decision of the Gujarat High Court.

Issue-wise Detailed Analysis:

1. Compliance with Conditions of Exemption Notification:
The appellant argued that they had complied with all conditions stipulated in the exemption notification, as the goods were imported for use in the ONGC Project. The Director General of Hydrocarbon (DGH) issued a certificate confirming that the goods were required for offshore exploration/exploitation activities. The appellant contended that the exemption notification did not specify an actual use/end-use condition. They cited the Tribunal’s decision in Clough Engineering Ltd. v. Commissioner of Customs, which was upheld by the Supreme Court, to support their position.

2. Denial of Exemption for Surplus Goods:
The Revenue argued that the denial of exemption was justified as the surplus goods were not used in the specified ONGC projects and were moved without proper authorization. The appellant admitted in un-retracted statements that the surplus cargo was not used for the intended purpose and was moved without ONGC's knowledge or any prior permission from relevant authorities. The Revenue claimed this indicated mischief by the appellant.

3. Confiscation, Duty Demand, and Penalties:
The Tribunal considered the appellant's reliance on previous decisions, including Clough Engineering Ltd., which interpreted the expression "required for petroleum operation" and concluded that there was no end-use condition in the notification. The Tribunal found that the appellant's case was similar, as the imported goods were intended for use in the project and the surplus goods were not used due to project completion. The Tribunal noted that the conditions mentioned in the relevant serial numbers of the notification were identical to those in the cited cases, supporting the appellant's claim for exemption.

4. Pending Decision of the Gujarat High Court:
The Tribunal acknowledged that a similar matter involving the appellant was pending before the Gujarat High Court. The Tribunal decided to remand the case to the original adjudicating authority for reconsideration based on the outcome of the High Court's decision. The Tribunal set aside the impugned order and directed the original adjudicating authority to pass a fresh order after the High Court's decision, ensuring a reasonable opportunity for hearing the appellants.

Conclusion:
The appeals were allowed by way of remand to the Adjudicating Authority, with instructions to consider the outcome of the Gujarat High Court's decision in a related matter. The Tribunal emphasized the need for a fresh adjudication order, providing the appellants with a reasonable opportunity for a hearing.

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