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TMI Blog2022 (4) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... adhha Advocates for the Appellant (Assessee) Mr. G. Kirupanandan, Superintendent (Authorized Representative) for the Revenue ORDER The present appeals have been filed by the Appellants against the Order-in-Appeal No. MUN-CUSTM-000-APP-012-14-15 dated 25.11.2014 2. The brief fact of the case is that the appellant was awarded contract for B-193, Sub-sea pipe Line B-193, Process Platform Projects by ONGC for which the appellant had imported various goods/ materials for use in the said projects availing the benefit of concessional rate (NIL) duty under Sr. No. 215 of Notification 21/2002-Cus dtd. 01.03.202, under 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. On intelligence that the above goods were kept on dumb barge namely Bhageeratha-V, which had taken berth at Kaula Bunder, Darukhana and the said goods were to be illegally diverted to the local market without paying the Custom duty, department initiated investigation into the matter and detained the goods. On request of Importer the goods were released provisionally. Investigation further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shore exploration/exploitation activity of ONGC Project. It is further submitted that the exemption notification does not provide actual use/end use condition. The present case is covered by the decision of the Tribunal in the case of Clough Engineering Ltd. v. Commissioner of Customs - 2006 (198) E.L.T. 457 (Tri.), which is upheld by the Hon ble Supreme Court as reported in 2006 (202) E.L.T. A59 (S.C.). The learned Advocate also relied upon the following decisions: - (i) Ramson Garments Finishing Equip. P. Ltd. v. CCE, Bangalore - 2007 (211) E.L.T. 44 (Tri.-Bang.). (ii) CCE Chennai-I v. Q Max Test Equipment Pvt. Ltd. - 2003 (159) E.L.T. 665 (Tri.-Che.). (iii) B.G. Exploration Production (I) Ltd. Vs. C.C.(Import), Mumbai (iv) UOI v. Inter Continental (India) - 2008 (226) E.L.T. 16 (S.C.) 4. He also submits that in their own matter the tribunal decided the matter vide final order No. A/11324/2015 dtd. 15.09.2015 in their favour. 5. On the other hand, Ld. Superintendent (AR) appearing for the Revenue reiterates the findings of the impugned order and argued that the denial of exemption in the present case is of those goods which have not been used at B-19, Sub-Sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed the benefit of notification. The Adjudicating authority observed that the said decision is not applicable as the serial number and the conditions mentioned in the above decision are different from serial number and conditions mentioned, under which the appellant claimed the benefit of the notification. We find that the conditions mentioned in both serial numbers of the notification are identical. In the said case, the goods were required for petroleum operations, whereas, in the present case, the goods are required for offshore oil exploration and exploitation. 13 . In the case of Clough Engineering Ltd. (supra), the Tribunal followed the earlier case of Q Max Test Equipment Pvt. Ltd. (supra). The relevant portion of the finding in the case of Clough Engineering Ltd. (supra) is reproduced below : - 7. In the case of Commissioner of Central Excise, Chennai v. Q Max Test Equipment Pvt. Ltd. [2003 (159) E.L.T. 665 (Tri.-Chennai)] the Tribunal has held in the context of Notification No. 56/88 granting exemption to goods required for use of testing of LSI/VLSI, etc. that On my careful consideration of the submissions, as well as the findings recorded by le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for testing equipment falling under chapter heading 85.42. Therefore the ruling of the Apex Court rendered in the case of Sha Harakchand Dharkaji v. CC, Madras (supra) clearly applies to the facts of the case and is not distinguishable. So also the judgment rendered in the case of Bermalt (India) Pvt. Ltd. v. GOI Ors., reported in 1986 (23) E.L.T. 411 (Del.) will also apply to the facts and circumstances of the case. It was also brought to our notice that in the present case, the Revenue did not obtain any end-use certificate. Neither there is any condition for production of end-use certificate in the notification. Therefore the key for understanding of this notification is to read the notification in simple terms and not to import any other meaning which is not intended in the notification. The notification exempts the goods specified in the table annexed to the notification falling within Chapter 84 or Chapter 85 or Chapter 90 of the First Schedule to the Customs Tariff Act, 1975 and are required for the manufacture of goods, falling under heading No. 85.42 of the said First Schedule. The certificate produced from M/s. Electronic Corporation of India Ltd. clearly indicates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilarly, in the instant case, the appellant complied with all conditions mentioned in the notification at the time of clearance of the goods for ONGC Project. There is condition for requirement of end-use certificate in the notification. There is no dispute that the excess goods were intended for use in the project and therefore, the benefit of the said notification cannot be denied. 15 . In view of the above discussion, we find that the demand of duty along with interest and penalty and confiscation of the goods cannot be sustained. Accordingly, the impugned order is set aside. The appeal filed by the appellant is allowed. 7. Against the said final order of tribunal the department has filed the Tax Appeal No. 1038 of 2017 before the Hon ble Gujrat High Court and said appeal admitted by the Hon ble High Court and pending for final decision. 8. 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 o ..... 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