Page 153 - ELT_2nd_15th April 2020_Vol 372_Part

2020 ] OIL AND NATURAL GAS CORPORATION LTD. v. UNION OF INDIA 199

3. Learned advocate for the petitioner is strongly opposing and submitted
that it is unnecessarily amounting to delay the final hearing of the matter.
4. We are of the opinion that the Civil Application for amendment is re-
quired to be allowed. It goes without saying that the reply, if any to the
amended portion, is always permitted to be filed. Civil Application is al-
lowed. The draft amendment shall be carried out forthwith.
5. Learned advocate for the respondent submitted that four weeks’ time
will be granted to place on record the reply to the amended portion that
would be forming part of the main petition.
6. Learned advocate for the petitioner seriously opposes and submits that
the delay in processing refund is itself sufficient and the proceedings before
this Court ultimately will have to be on merits of the matter, wherein all
sorts of questions may crop up including the preliminary objection of avail-
ability of alternative remedy. In that view of the matter, the Court may not
grant as long as four weeks’ time.
Put up the main matter on 23-1-2020.”
4. On 31-1-2020, the Court passed following order:-
“Shri Viral Shah, learned advocate for respondent no.2 has placed on record
the affidavit. Learned counsel for petitioner submitted that he is ready with
the matter and as the time is getting over, there is urgency in the matter and
accordingly, he urges the Court to keep the matter on 10-2-2020. Put up on
10-2-2020.”
5. Thereafter, the impugned order was passed on 29-11-2019, which by
way of amendment is challenged in present petition on a ground that the same
was nothing but an act of overreaching the process of Court, as when the Court
was in session of the matter and when the authority did advert to the Court pro-
ceedings, chose to precipitate the entire proceedings by way of order impugned
and indicating that the appeal would be available thereupon. This was an at-
tempt as per the submission of the counsel to thwart the present proceedings.
Learned Counsel for the petitioner contended that the development of the facts
in the matter and exchange of correspondence between the parties would be suf-
ficiently clear to support the contention of the petitioner that the claim of refund
has, in fact, inordinately been delayed, for the reasons best known to the authori-
ties.
6. Learned Counsel appearing for the petitioner further submitted that
the facts touching upon the event of duty on the machinery in question were suf-
ficiently clear to indicate that those machineries were never intended to be dealt
with in any manner or traded by the petitioner so as to pass on the duty event or
the duty component to the end-user or the customer. In short, the machineries
were being imported as a part of turnkey project under which the contractor was
to bring in those machineries for the purpose of operating them for drilling and
for exploration purpose only and they were to be sent back along with original
contractor as the machinery belonged to them and the ownership had not been
changed. The technical aspect of import and the event of duty, if any, were natu-
rally to be borne by the corporation as per the terms of the contract and, there-
fore, the exemption which was available was rightly available and the authorities
did acknowledge the same and, therefore, ultimately after tossing the matter
EXCISE LAW TIMES  15th April 2020  169