MAZAGON DOCK LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE claims for refund of duty of Rs. 42,59,214/ -, Rs. 34,10,322/ -, Rs. 4,12,8111 - and Rs. 4,51.892/ - paid by the appellants herein in respect of goods such as OCI Vessels etc. imported under Bills of Entry dated 17.3.97, 9.4.97, 25.3.98 and 6.4.98 have been rejected by the authorities below on the ground of non submission of requisite Essentiality Certificate issued by the Director General of Hydrocarbon as specified at Sr.No.34 of the Table to Notification No. 11/97 -Cus dated 1.3.97 at the time of clearance of the goods.

(2.) WE have heard both sides. We find that the appellants claimed the benefit of concessional rate of duty as provided for in the Notification even at the time of seeking clearance of the goods and undertook to produce essentiality certificate from the competent authority and that immediate clearance was sought because the items imported were urgently required at the site of Off -Shore oil field of Oil and Natural Gas Commission. ONGC applied for the certificate subsequent to the clearance of the goods and the certificate was produced by the appellants alongwith refund claims. In a recent decision in the case of Commr. of Customs (lmports), Mumbai v. Tullow India Operations Ltd., the Hon'ble Supreme Court has held that Essentiality Certificate issued by the Director General of Hydrocarbons is to be treated as proof of fact that importers have fulfilled conditions enabling them to obtain benefit under Notification No. 121/99 -Cus which is in pari -materia with Notification No. 11/97 -Cus as regards the requirement of production of essentiality certificate at the time of importation, and has upheld the extension of exemption to the respondents by the Tribunal's order. The ratio of the above decision is squarely applicable to the facts of the present case.

(3.) THE case laws relied on by the Commissioner (Appeals) viz. the decision of the Hon'ble Gujarat High Court in Navasari Oil Products Ltd. and Alembic Glass India Ltd. have been rendered in the context of Central Excise Notifications, wherein exemption depended upon composition or condition of goods and physical verification was required (Navasari Oil Products Ltd.) and Rule 173L of Central Excise Rules (Alembic Glass India Ltd.) and not in the context of Notification issued under the Customs Act requiring production of essentiality certificate.