Page 149 - ELT_2nd_15th April 2020_Vol 372_Part

2020 ] OIL AND NATURAL GAS CORPORATION LTD. v. UNION OF INDIA 195

der absolutely silent qua petitioner’s contention indicating that machinery in
any manner not capable of being dealt with in or passing, so as to pass on bur-
den of duty to consumer or end-user - Authorities in uncanny avoidance to
deal with aspect rendering order vitiated and, therefore, decision of authority
qua depositing amount into consumer fund required to be deprecated,
quashed and set aside - Authority may be called upon to decide aspect of pay-
ment of refund along with interest without further insisting upon any other
material and based upon material already submitted - Section 11B of Central
Excise Act, 1944. [paras 10, 11, 12, 13]
Petition partly allowed
REPRESENTED BY : Shri Ajay R. Mehta, for the Petitioner.
S/Shri Devang Vyas and Viral K. Shah, for the Re-
spondent.
[Judgment per : S.R. Brahmbhatt, J. (CAV)]. - Present petition has been
taken out for assailing order dated 21st November, 2017 and 16th July, 2018
passed by the respondent calling upon the petitioner to furnish the details, which
according to the petitioner were not germane and material and it was merely an
attempt to dodge the responsibility of refunding the duty paid by the petitioner.
During the pendency of this petition, the respondent issued order dated 29-11-
2019 on the refund application holding that the petitioner was entitled to seek
refund and the amount was also quantified but on account of the petitioner’s
failure in producing the documentary evidences indicating that the petitioner has
not passed on the duty burden to the consumers or end-users, such duty amount
was deposited and paid into the consumer funds maintained under Section 12
(C) of the Central Excise Act, 1944, created for reserving such amount of duties,
which are not admissible or not refunded back to the claimant, and amount of
duty of customs referred to in sub-section (2) of Section 27 or sub-section (2) of
Section 28A or sub-section (2) of Section 28B of the Customs Act, 1962.
2. Facts in brief shorn of unnecessary details and required only for ad-
dressing the controversy in question deserve to be set out as under :-
2.1 The petitioner entered into a contract with a company named
Messrs Tecno Export, Moscow, in 1986 for exploration of Hydrocarbon. The said
contract dated 4-12-1986 was a turnkey project for conducting seismic survey in
North Cambay and Cambay Basins. The contract dated 19-12-1986 was for drill-
ing of 26 numbers of exploratory wells in the North Cambay Basin. The contrac-
tor-Techno Export imported their equipment and material in sixteen consign-
ments to Kandla Port, out of which five consignments were received in October,
1986 and eleven consignments were received in February-March, 1987. All the
sixteen consignments were permitted to be cleared on provisional basis against
ITC bonds and the petitioner-ONGC paid customs duty on merit rates at the
time of clearance of consignments. The essentiality certificate for payment of cus-
toms duty on concessional rates was received and on that basis the claim for re-
fund of excess duty was lodged with the authorities at the port and the customs
authority, Kandla Port, on 12-9-1989 in respect of five bills of entry and on 14-15-
9-1989 in respect of eleven bills of entry.
2.2 The demand for documents for processing the refund claim were
made, which were furnished, however, it continued and, therefore, the corre-
EXCISE LAW TIMES  15th April 2020  165