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TMI Blog2016 (11) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... ad of specifically stating whether the product is MGO or not, the Chemical Examiner has chosen to show us that the product is LDO. In the absence of a specific report from the Chemical Examiner that the product is not MGO which was what required by the Custom House, it cannot be said that the Chemical Examiner’s report supports the case of the Custom House. There is no evidence to show that the product is not MGO. The Chemical Examiner’s report also as observed by us does not support the case of the appellant. At this juncture, the learned AR submitted that the appellants have not challenged the test report at all. In fact even though the tests were conducted much earlier the results of the samples were communicated to the appellants only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations. b) Notification No. 21/2002-Cus. Dated 01.03.2002, vide Sl. No. 217 exempts specified goods mentioned in List 12 of the said Notification which are required in connection with petroleum operations undertaken under specified contracts under the NELP from the whole of customs and additional duties. List 12 of the said Notification inter alia, includes vessels, equipments, spares, materials and consumables for running, repairing or maintenance of such goods. Thus, the fuel used for running such vessels is exempt under S. No. 217 ibid. c) The exemption is available to the Appellant, who is the subcontractor in the present case. The exemption is subject to the condition that when the goods are imported by sub-contractors, they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gave the flash point, kinematic viscosity, density and sulphur content of the samples and stated that the sample has characteristics of Light Diesel Oil (LDO). g) Finalization of the assessment in respect of Bills of Entry Nos. 158/29.7.2008, 250 251/3.11.2008, 268/20.11.2008, 281/8.12.2008, 79/30.4.2009, 133/19.4.2010 and 116/8.03.2011 in terms of Section 18(2) of the Customs Act, 1962 (hereinafter referred to as the 'Act') by assessing duty of ₹ 2,12,47,531/being the customs duty on Light Diesel Oil without extending exemption under Notification No. 21/2002-Cus dated 01.03.2002; h) Adjustment of amount of ₹ 51,73,756/- being the customs duty paid at the time of provisional assessment, towards duty liability men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate which is clearly issued for MGO/FO and not for LDO. Hence, exemption cannot be extended to LDO. 5. To avail benefit of a Notification, a party must comply with all the mandatory conditions of the Notification. Relied on CC, Bangalore V/s. Maestro Motors Ltd. [2004 (174) ELT 289 (S.C)] and CCE, New Delhi V/s Hari Chand Shri Gopal [2010 (260) ELT 3 (S.C)]. 2. The issue stands squarely covered by the judgments in the case of Transocean Discoverer 534 LLC Vs CCE [2015 ELT 69 (Tri-Bang)] and the relevant portion of the decision is reproduced below: 4. The report of the chemical examiner is the basis for coming to the conclusion that appellant is not eligible for the exemption. It is seen that in the Test Memo No. 4/2008, while for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the ISO. 7. As regards Sulfur content he submits that according to the standards it should be 1.5% maximum whereas in the present case Chemical Examiner has found the percentage of Sulfur to be 0.880 which is again within the limits for MGO. As regards Flash point, he submits that 85 C is the Flash point according to the Chemical Examiner and according to ISO 61.5 C is the minimum. Therefore the sample fulfilled the requirement of MGO as far as combustion ash is concerned. 8. Lastly he submits that Fluidity at 40 C has to be between 2.000- 6.000 mm2 and in this case which is 4.6 which is again between 2-6 and therefore within the norms prescribed for MGO. Prima facie we find these submissions to be correct. Further he takes us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned counsel drew our attention to a letter written by the appellants to the Customs saying that the sample may be referred to CRCL for re-examination. Further no action was taken on this letter probably because by the time the letter was written a number of years have already passed. Since it is not the case of the Revenue that the product imported by the appellant does not fulfill the parameters for MGO as per the Indian Standards, we are not in a position to uphold the impugned order taking a stand that what is imported is LDO and not MGO and therefore the benefit of exemption is not available. 3. The above ratio was applied by this Bench in the case of CGG Marine V CCE ST Vizag [Final Order No. A30472 /2016 dated 16.05.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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