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TMI Blog2005 (10) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts the goods of the description specified in column (3) of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling within the Chapter, Heading No. or sub-heading No. of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India, - (a) from so much of the duty of the customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table; (b) from so much of the additional duty leviable thereon under sub-section (1) of Section 3 of the said Customs Tariff Act, as is in excess of the rate specified in the corresponding entry in column (5) of the said Table, subject to any of the conditions, specified in the Annexure to this notification, the condition No. of which is mentioned in the corresponding entry in column (6) of said Table. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods are imported by an Indian Company or Companies, a Foreign Company or Companies, or a consortium of an Indian Company or Companies and a Foreign Company or Companies (hereinafter referred to as the "contractor" or a sub-contractor of the contractor and in each case in connection with petroleum operations to be undertaken under a contract with the Government of India; (b) where the importer is a contractor, he produces to the Assistant Commissioner of Customs, at the time of importation, the following, namely :- (i) a 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 goods are required for petroleum operations referred to in clause (a) and have been imported under the contract referred to in that clause, and (ii) a certificate, in the case of a contract entered into by the Government of India and a Foreign Company or Companies or, the Government of India and a consortium of an Indian Company or Companies and a Foreign Company or Companies, that no foreign exchange remittance is made for the import of such goods undertaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SAD. (b) Value of 3-D seismic data tapes should not be ascertained at US $ 13,803,600 + US $ 2,968,230 = US $ 16,771,830 = Rs. 72,11,886,90/- and value of the vessel M.V. Geco Sapphire be ascertained as US $ 45,000,000/- = Rs. 193,50,00,000/- on the basis of contract provided by you under Section 14 of Customs Act, 1962 read with Rule 4 with adjustments as provided under Rule 9 of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. (c) Customs duty of Rs. 160,46,18,960/- on the assessable value should not be demanded from you under the provision of Section 12 of the Customs Act 1962. (d) 3-D seismic data tapes and M.V. GECO SAPPHIRE and equipments valued at Rs. 72,11,88,690/- and Rs. 194,50,00,000/- respectively imported illegally should not be confiscated under Section 111(m) and 111(o) of Customs Act, 1962. (e) Penalty under Section 112(a) of Customs Act, should not be imposed on importer." 9. In reply to the aforementioned show cause notice, ONGC filed a reply wherein the technical aspect of the matter had been stated in para 4.22 thereof. It was further contended that in a seismic vessel, there is no connectivity between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a pure service contract cannot be subjected to customs duties on the ground that the results of seismic surveys are recorded in tapes or discs and, thus, would not be 'goods' within the meaning of provisions of Customs Act, 1962. (ii) The exemption notifications having been issued for exemption of goods imported in India for petroleum exploration subject, of course, to filing of the essentiality certificate issued by the Directorate of Hydrocarbons and as such an essentiality certificate had been produced even before this Court, it is entitled to such exemption. (iii) In any event, having regard to the fact that the Tribunal accepted such essentiality certificate in the case of Tullow, there is no reason why the same benefit would not be granted in its favour. In any event as the tapes and discs are softwares within the meaning of Serial No. 231 of the Notification, it is entitled to the benefit of the aforementioned exemption notification No. 20 of 1989 having regard to the fact that the same has liberally been construed in terms of the explanation appended thereto. 17. Mr. V. Lakshmikumaran, learned Counsel appearing on behalf of 'Tull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is behalf has been placed on Jindal Drilling and Indus. Ltd. v. Collector of Customs, Bombay [2001 (138) E.L.T. 1335]. Our attention has been drawn to an order of this Court dated 11-5-2000 passed by this Court dismissing the SLP (Civil) CC No. 3364 of 2000 filed thereagainst by Modest Shipping Agency Pvt. Ltd. reported in [2002 (140) E.L.T. A95] 22. It was further urged that the public notice issued by the Madras Custom House refers to certificates which may be necessary to be produced within the meaning of the provisions of the Customs Act as, for example, certificate to prove country of origin or certificate to prove valuation, as may be necessary, by reason of the conditions imposed for import which are not conditions precedent or exemption notification. 23. Both the importers are licensees. Indisputably, they were entitled to the benefit of the exemption notification subject, of course, to the condition that they would produce the essentiality certificate granted by the Directorate General of Hydrocarbons at the time of importation of goods. Grant of essentiality certificate was not in the hands of the assessees. It was a function of a department of the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he imported goods are required for petroleum operation referred to in clause (a) of condition No. 34 and under the licence referred to herein. 28. The Directorate General of Hydrocarbons is under the Ministry of Petroleum and Natural Gas of the Government of India. The functions performed by it are public functions. The notification never contemplated that a public functionary, having regard to the importance of the subject matter and in particular when such 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. It is trite that when a public functionary is required to discharge its public functions within a time specified therefor, the same would be construed to be directory in nature. [See P.T. Rajan v. T.P.M. Sahir and Others - (2003) 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Directorate General of Hydrocarbons was aware of all requisite requirements necessary therefor. It may presume that the department was also aware of the provisions of the Customs Act and the consequences likely to be suffered by the importer in the event of its inability to produce the same before the competent authority at the time of importation. The exercise undertaken by the said department, thus, was not to end in futility. 34. In almost a similar situation, the question came up before this Court in Commissioner of Central Excise v. M.P.V. & Engg. Industries [2003 (153) E.L.T. 485] (wherein one of us, B.P. Singh, J. was a member) which was answered stating that an assessee although was otherwise entitled to obtain the benefit of an exemption certificate, the same should not ordinarily be denied to it because of any administrative delay over which he had no say in the following words : "... In a case of this nature it is only reasonable to take the view that the benefit of exemption will accrue to a unit found to be a small-scale industrial unit from the date on which the application was made for the grant of registration certificate. Such a unit should not be depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Even under the aforementioned provision, the Board exercises a limited power. [See Pahwa Chemicals (P) Ltd. v. Commissioner of Central Excise, New Delhi -(2005) 2 SCC 720]. 41. 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 No. 5900 of 2004 is, therefore, dismissed. 42. We for the reasons aforementioned remit the matter to the Commissioner for similar purpose in the matter of ONGC for consideration of the matter afresh. The Commissioner is directed to send a copy of its order to this Court. Other contentions raised by the parties herein shall remain open. It is made clear that in the event the order of the Commissioner goes against the contentions of the assessee Tullow, it will be open to it to question the correctness thereof before an appropriate forum. 43. Civil Appeal Nos. 1882 of 2004 and 854 of 2005 are adjourned sine die. These appeals shall be listed as and when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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