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TMI Blog2006 (5) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... nton while it was engaged in petroleum operation under contract with O.N.G.C. dated 25-3-2002. Under Sl. No. 214 of Notification 21/2002-Cus, goods covered by List 12 imported for use in connection with such petroleum operations were completely exempted from customs duty subject to compliance with Condition No. 29 of the Notification. Condition No. 29 required the importer to produce, inter alia, an Essentiality Certificate (E.C) from the Director General of Hydrocarbons (D.G.H.) to the effect that the goods were required for the petroleum operations in question. The procedure followed by the D.G.H. was to issue E.C.s only if recommendatory letters were issued by the O.N.G.C. recommending their issuance. The spares imported by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recommendatory letters and on the strength of the recommendatory letters D.G.H. issued necessary E.C s. The writ petition was finally disposed of by order of the Delhi High Court dated 11-03-2003 in which the customs authorities were directed to dispose of the appellants refund claim taken into consideration the E.C.s issued by D.G.H. and passing a speaking and reasoned order after granting the appellants hearing. 4. The appellants filed a refund claim on 6th May 2003 which was rejected by the Deputy Commissioner on the ground of unjust enrichment and by placing reliance on the decision of the Hon ble Supreme Court in the case of Collector of Central Excise, Kanpur v. Flock (India) Pvt., Ltd. - 2000 (120) E.L.T. 285 (S.C.) according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of clearance of the goods. Even otherwise delayed production of E.C.s will not result in denial of exemption Notification as has been held by the Tribunal in the case of S.K.F. Bearing India Ltd. v Collector of Customs, Bombay - 1999 (109) E.L.T. 774 (Tribunal) Wockhardt Medical Centre v Collector of Customs - 1993 (66) E.L.T. 522 (Tribunal) and by Madras High Court decision in the case of L.M. Ven Moppes Diamond Tolls India Ltd., Madras v. Government of India - 1981 (8) E.L.T. 165 (Mad.) finally by the Supreme Court in the case of Commissioner of Customs (Import), Mumbai v Tullow India Operations Ltd. - 2005 (189) E.L.T. 401 (S.C.) 7. It was further submitted that the Commissioner (Appeals) has wrongly held that it was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet to be made. It was further submitted that in a similar case the Tribunal has in the case of Commissioner of Customs, Bangalore v. Integra Micro Systems (P) Ltd. - 2005 (180) E.L.T. 174 (Tri.-Bang.) has held that mere claim of the benefit of Notification does not amount to reopening of assessment as the Notification required only the production of the certificate which has been accepted by the Commissioner and therefore in spite of Priya Blue, the refund was held to be admissible. 9. As regards unjust enrichment attention was invited to series of Tribunal decision wherein it has been held that unjust enrichment will not apply in case where the assessment are provisional. 10. In view of above, it was submitted that their assessment h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill of entry has been finally assessed the question of presuming assessment to be provisional simply does not arise and decision in the J.B.M. Industries case will not be applicable in the present case. For the provisional assessment there has to be a specific order from the Assistant Commissioner and in the absence of the same assessment cannot be presumed to the provision. This view is supported by the Supreme Court decision in the case of Commr. of C. Ex. Calcutta v. Hindustan National Glass Industries Ltd. - 2005 (182) E.L.T. 12 (S.C.) wherein it was held that to establish that clearances were on provisional basis an order under Rule 9B of erstwhile Central Excise Rules, 1944 and clearances/payment of duty on provisional basis are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s merely because the matter was pending with Delhi High Court that too in relation to the issuance of essentiality certificate without any challenge to the denial of provisional assessment, it cannot be said that assessment were provisional. The Delhi High Court has interim order directed the appellants to pay full duty and found nothing wrong in denial of provisional assessment. Even in its final order the Hon ble High Court has only directed that refund claim should be considered and speaking order should be issued. This does not mean that refund claim has to be sanctioned ignoring plea of time bar and ignoring the fact that the assessment were not challenged in the absence of which the refund claims cannot been entertained as held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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