2015 (2) TMI 1001 - AT - Customs

Tribunal Remands Appeal for Fresh Hearing, Sets Aside Order Denying Notification Benefit

Schlumberger Asia Services Ltd. Versus Commissioner of Customs (Import), Mumbai

The Tribunal allowed the appeal by remanding the matter for fresh adjudication with a personal hearing for the appellant. The impugned order denying the ... Benefit of Notification No. 21/2002-Cus dated 1.3.2012 - machine in question is imported by the appellant as a sub contractor and his name is not figuring in the contract entered by the M/s Essar Oil Ltd with the Government of India which is a requirement as per the condition No. 32 of the Notification - transfer of imported goods from one eligible project to another project - Held that:- Notification No. 12/2012-Customs dated 17.3.2012 is issued in supersession of the earlier Notification 21/2002 dated 1.3.2002 which is the subject matter of the present appeal. The Board has issued clarification vide Circular No. 21/2013-Customs dated 16.5.2013 - The circular is issued after the date of the impugned order. In these circumstances, we find that matter requires reconsideration by the adjudication authority afresh in view of the Board s circular. The impugned order is set aside and the matter is remanded to the adjudicating authority for de novo adjudication - Matter remanded back - Decided in favour of assessee. Issues:Appeal against denial of benefit of Notification No. 21/2002-Cus dated 1.3.2012 - Interpretation of conditions for exemption under the notification - Clarification regarding the requirement of sub-contractor's name in the contract - Applicability of Circular No. 21/2013-Customs dated 16.5.2013 - Necessity of re-export bond for imported goods - Eligibility of individual member companies in a Consortium to import goods under the exemption - Requirement for sub-contractor to enter into a contract with the Government of India or have their name in the contract agreement for availing exemption.Analysis:The appellant filed an appeal against the Order-in-Appeal denying the benefit of Notification No. 21/2002-Cus dated 1.3.2012. The appellant contended that the denial was based on the absence of their name in the contract entered by the main contractor with the Government of India, as required by the notification's conditions. The appellant cited a Board's Circular stating that non-mention of the sub-contractor's name in the agreement should not be a ground for denial if the EC issued by DG, Hydrocarbons mentions the sub-contractor's name. The Revenue argued that the clarification referred to a different notification, but it was found that the later notification superseded the earlier one, making the clarification applicable.The Board's Circular clarified that imported goods for petroleum operations can be transferred between eligible projects under certain safeguards, without necessitating a re-export bond. It also addressed the eligibility of individual member companies in a Consortium to import goods under the exemption, stating that individual constituents could import under the EC. Regarding the requirement for sub-contractor's name in the contract agreement, the Circular emphasized that the EC issued by DG, Hydrocarbons should contain the sub-contractor's name, not the original contract. It highlighted that the condition was about the EC, not the contract between the main contractor and the Government.The Tribunal found that the Circular was issued after the impugned order, necessitating a reconsideration by the adjudication authority in light of the Circular. The impugned order was set aside, and the matter was remanded for fresh adjudication with a personal hearing for the appellant. The appeal was allowed by way of remand, emphasizing the importance of considering the Circular's clarifications in determining the eligibility for the exemption under the notification.