9911796707
TMI Blog2014 (1) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;The brief facts of the case are M/s. Global Vectra Helicorp Ltd. imported one helicopter BELL Model 412 EP helicopter Medium Twin Engine vide bill of entry no. 778712, dated 4-11-2008. The assessable value of the goods worked out to Rs. 45,80,85,096/-. At the time of import, they claimed exemption from customs duty at sr. no. 217 of the notification 21/2002, dated 1-3-2002. This exemption was available subject to the condition no. 32 as follows : "If,- (a) the 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 such company or companies or such consortium and in each case in connection with petroleum operations or coal bed methane operations, as the case may be, to be undertaken under a contract signed with the Government of India, on or after the 1st day of April, 1998, under the New Exploration Licensing Policy, or on or after the 1st day of April 2001 in terms of the Coal Bed Methane Policy, as the case may be; (b) where the importer is a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies 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 by the sub-contractor on behalf of the foreign company or companies : Provided that nothing contained in this sub-clause shall apply if such sub-contractor is an Indian company or companies." 4. M/s. Global Vectra complied with the conditions and used the helicopter till 31-7-2010 for the purpose mentioned as above. Now they have represented vide letter dated 13-12-2010 that their contract with Reliance Industries Ltd. has come to an end with effect from 31-7-2010. Now they cannot comply with the condition as above any longer. Now the helicopter is lying idle at Visakhapatnam. M/s. Global Vectra has not so far used the helicopter for any purpose other than that mentioned at S. No. 217 of Notification 21/2002-Cus. They have come up on their own volition to point out that they are not able to comply with the conditions in future. 5. They have also stated that they want to use the helicopter for "Non-Scheduled Passenger Op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bid, no amendment of a bill of entry or shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited, or exported, as the case may be. In this context, it has been submitted by the respondent that they were in possession of the necessary permission from DGCA at the time of import, therefore they are entitled for amendment in the bill of entry allowing them to avail exemption in terms of Sr. No. 347B to Notification 21/2002. In terms of Sr. No. 347B to Notification 21/2002, exemption is allowed in respect of helicopters meant for "non-scheduled air transport (passenger) services." Admittedly, during the aforesaid period, the helicopter was not used for "non-scheduled (passenger) operation" but in connection with "petroleum operations". Therefore, if the bill of entry is allowed to be amended from the date of import, then, the respondent is required to use the helicopter for non-scheduled passenger services with that date, whereas the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a two Judge Bench. It is further submitted that in another case, where the manufacturer had availed the credit at the time of clearance of the goods and had suo motu reversed it to avail the exemption later on almost after a period of 15 months, when it claimed a refund of Modvat credit, the Hon'ble Supreme Court has held that the manufacturer is not entitled to the exemption. 9. On the other hand ld. Counsel for the respondent submitted that - (1) there is no relevance of the expiry of import clearance dated 5-9-2008. This is because as per the wording of proviso to Section 149, at the time of consideration of amendment of bill of entry, the Commissioner is required to give due regard only to documentary evidence which was in existence at the time of goods were cleared. In the present case, the helicopter was cleared in 2008. The import clearance issued by the Ministry of Civil Aviation was very much in existence as it was to expire on 1-7-2009. He further submitted that the term NSOP is an umbrella term and is included hydrocarbon/petroleum operation. Hence the fact that the respondent declared the helicopter for NSOP used to DGCA and used it for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made on the basis of documents that were in existence at the time of goods were cleared" and in the case of I.P. Rings Ltd. - 2006 (202) E.L.T. 61 (Tri.-Chennai) wherein also this Tribunal held that the provisions of Section 149 ibid governs the amendment of import documents and export documents. Amendment of Bill of Entry is permissible on the basis of documentary evidence which was in existence of time when the goods were cleared. In the present case, when the goods were cleared, Customs Notification 21/2002 (unamended) was in existence. As its amendment through corrigendum was retrospective in effect, the amended Notification should be deemed to have been in existence at the time of clearance of the goods and, consequently, in terms of Section 149, the subject Bills of Entry were open to be amended. We further find that as per condition 32(c) of the above said Notification where the importer is a sub-contractor (such as the respondent), the primary liability of duty is of the contractor and not to a sub-contractor (such as the respondent). It if for this purpose that as per sub-clause (iii) of the condition 32(c) an affidavit is required to be given by the contractor binding ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
