Ashok Jindal, Member (Judicial):— Revenue has filed this appeal against the impugned order wherein the ld. Commissioner allowed the claim of exemption at serial no. 347B of notification 21/02-Cus. The respondent also filed an application for early hearing of the appeal on the ground that the similarly placed helicopter owned by the respondent wherein the respondent has filed a similar application but the appellant is not willing to dispose of the said application due to pendency of this said appeal and the respondents are incurring losses on day today basis. Therefore, appeal be heard on priority basis.

2. After considering the application for early hearing of the appeal we allow the same and take up the appeal for final hearing today itself as agreed by both sides.

3. The brief facts of the case are M/s. Global Vectra Helicop Ltd. imported one helicopter BELL Model 412 EP helicopter Medium Twin Engine vide bill of entry no. 778712 dated 04.11.2008 The assessable value of the goods worked out to Rs. 45,80,85,096/-. At the time of import, they claimed exemption from customs duty at sr. no. 217 of the notification 21/02 dated 1.3.2002 This exemption was available subject to the condition no. 32 as follows:

(a) the goods are imported by an Indian Company or Companies, a Foreign Company or Companies, or a consortium of an Indian Company or Companies and a Foreign Company or Companies (hereinafter referred to as the “contractor”) or a sub-contractor of such Company or Companies or such consortium and in each case in connection with petroleum operations or coal bed methane operations, as the case may be, to be undertaken under a contract signed with the Government of India, on or after the 1 day of April, 1998, under the New Exploration Licensing Policy, or on or after the 1 day of April 2001 in terms of the Coal Bed Methane Policy, as the case may be;

(b) where the importer is a contractor, he produces to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, at the time of importation, the following, namely:—

(i) a certificate from a duly authorised officer of the Directorate General of Hydro Carbons in the Ministry of Petroleum and Natural Gas, Government of India, to the effect that the imported goods are required for such petroleum operations or coal bed methane operations, as the case may goods are required for such petroleum operations or coal bed methane operations, as the case may be, and have been imported under a contract signed under the New Exploration Licensing Policy or the Coal Bed Methane Policy, as the case may be; and

(ii) a certificate, in the case of a contract entered into by the Government of India and a Foreign Company or Companies or, the Government of India and a consortium of an Indian Company or Companies and a Foreign Company or Companies, that no foreign exchange remittance is made for the imports of such goods undertaken by the Foreign Company or Companies;

(c) where the importer is a sub-contractor, he produces to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, at the time of importation, the following, namely:—

(i) a certificate from a duly authorised officer of the Directorate General of Hydro Carbons, in the Ministry of Petroleum and Natural Gas, Government of India, to the effect that the imported goods are required for petroleum operations or coal bed methane operations, as the case may be, referred to in clause (a) and have been imported under a contract signed under the New Exploration Licensing Policy or the Coal Bed Methane Policy, as the case may be, and containing the name of such sub-contractor,

(ii) an affidavit to the effect that such sub-contractor is a bona-fide sub-contractor of the contractor,

(iii) an undertaking from such contractor, binding him to pay any duty, fine or penalty that may become payable, if any of the conditions of this notification are not complied with, by such sub-contractor or contractor, as the case may be; and

(iv) a certificate, in the case of a contract entered into by the Government of India and a Foreign Company or Companies or, the Government of India and a consortium of an Indian Company or Companies and a Foreign Company or Companies, that no foreign exchange remittance is made for the import of such goods undertaken by the sub-contractor on behalf of the Foreign Company or Companies:

Provided that nothing contained in this sub-clause shall apply if such sub-contractor is an Indian Company or Companies.”

4. M/s. Global Vectra complied with the conditions and used the helicopter till 31-07-2010 for the purpose mentioned as above. Now they have represented vide letter dated 13-12-2010 that their contract with Reliance Industries Ltd. has come to an end with effect from 31.7.10 Now they cannot comply with the condition as above any longer. Now the helicopter is lying idle at Visakhapatnam. M/s. Global Vectra has not so far used the helicopter for any purpose other than that mentioned at S. No. 217 of Notification 21/2002-Cus. They have come up on their own volition to point out that they are not able to comply with the conditions in future.

5. They have also stated that they want to use the helicopter for “Non-Scheduled Passenger Operations” for which also an exemption was available at the time of importation as well as now. The exemption they claim is at S. No. 347B of Notification 21/2002-Cus. They have requested for amendment of Bill of Entry no. 778712 dated 4.11.08 to seek exemption at Sr. No. 347B instead of sr. no. 217 of Notification 21/02. They have requested that amendment may be done under Section 149 of the Customs Act, 1962.

6. After considering the request for amendment to impugned bill of entry, the Commissioner held that the respondent are entitled to claim exemption at sr. no. 347B of Notification 21/02-Cus and passed the following order:

“M/s. Global Vectra Helicorp Ltd. may give undertaking as required under condition 104 of Notification 21/2002-Cus and comply with all conditions as laid down therein. If these terms are complied with, there will be no requirement to pay any duty, fine or penalty as envisaged in condition 32 which was applicable to them from the date of import to the date of this order.

This order is without prejudice to any action that may be taken against M/s. Global Vectra Helicorp Ltd., if any of the facts submitted by them in the context of this order is found to be false in future or if they do not comply with conditions no. 104 of the Notification 21/02-Cus dated 1.3.2002”

Aggrieved from the said order the revenue has filed this appeal.

7. The ld. Authorised representative submitted as under:- It has been submitted by the Department that the respondent claimed benefit under sr. no. 347B to Notification 21/02 on the ground that they have been granted licence by DGCA to operate non-schedule (passenger) services. The said permission no. AV14014/48/97-ATI dated 5.9.2008 granted by the DGCA for non-scheduled air transport service (passenger) is valid for import clearance upto 1.7.09 In this case, the respondent has requested for benefit of sr. no. 347B of Notification 21/2002 vide their letter dated 13.12.2010 Therefore the date of request is after 1.7.2009 Therefore permission granted by DGCA vide letter dated 5.9.2008 is not valid when the request has been made by the importer for giving the benefit of sr. no. 347B of Notification 21/2002. Further the respondent had applied for amendment of Bill of entry in terms of provisions contained in section 149 of the Customs Act, 1962. As per proviso to section 149 ibid, no amendment of a bill of entry or shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited, or exported, as the case may be.” In this context, it has been submitted by the respondent that they were in possession of the necessary permission from DGCA at the time of import, therefore they are entitled for amendment in the bill of entry allowing them to avail exemption in terms of sr. no. 347B to Notification 21/2002. In terms of sr. no. 347B to Notification 21/2002, exemption is allowed in respect of helicopters meant for “non-scheduled air transport (passenger) services.” Admittedly, during the aforesaid period, the helicopter was not used for non-scheduled (passenger) operation” but in connection with “petroleum operations”. Therefore, if the bill of entry is allowed to be amended from the date of import, then, the respondent is required to use the helicopter for non scheduled passenger services with that date, whereas the fact is that from the date of import, till 31.7.2010 the helicopter has not been used for non-scheduled (passenger) operations.”

8. It is further submitted by the respondent that at the time of import, the helicopter was covered by sr. no. 217 as well as 347B of the exemption Notification 21/2002 and as per established law, they were free to choose the Notification most beneficial to them. In support of their contention they have relied upon the decision of the apex court in the matter of Share Medical Care v. UOI 2007 (218) 170. In this context, it is submitted that in the present case, at the time of import, out of the above two options available to them, the respondents on their own volition, opted for exemption under sr. no. 217 of the Notification 21/2002 and submitted the necessary entitlement certificates and undertaking. They used the goods as per the requirement of sr. no. 217. Therefore, after a lapse of more than two years, and after exhausting the benefit available under such sr. no. 217 of the exemption Notification, they have now come forward to claim benefit under another serial no., under the said Notification which was not the case in the Share Medical Care supra. Further, the Share Medical Care does not state that after using the benefit under a particular sr. no., the importer can claim the benefit against another sr. no. Further, in the case of Jaslok Hospital & Research Centre 2007 (218) ELT 170, an issue similar to that in the case of Share Medical Care (supra) came up for consideration before the Hon'ble Supreme Court. In that case also Jaslok Hospital sought the categorisation under para 1 of the table to Notification 64/88 instead of para 2 of the table. The Hon'ble Supreme Court held that the change in categorisation was sought after a lapse of three years, therefore, an after thought. In this case also, the change has been sought after lapse of more than 2 years. The ratio laid down by the Hon'ble Supreme Court in the aforesaid judgment is equally applicable. It may be mentioned here that decision of the apex court in the case of Share Medical Care (supra) was brought to the notice of the bench in the matter of Jaslok Hospital (supra). It may be also mentioned that the decision in the case of Jaslok Hospital is of a later date and by a three Judge Bench as compared to Share Medical Care (supra) judgment by a two Judge Bench. It is further submitted that in another case, where the manufacturer had availed the credit at the time of clearance of the goods and had suo motu reversed it to avail the exemption later on almost after a period of 15 months, when it claimed a refund of MODVAT credit, the Hon'ble Supreme Court has held that the manufacturer is not entitled to the exemption.

9. On the other hand, ld. Counsel for the respondent submitted that-1) there is no relevance of the expiry of import clearance dated 5.9.2008 This is because as per the wording of proviso to Section 149, at the time of consideration of amendment of bill of entry, the Commissioner is required to give due regard only to documentary evidence which was in existence at the time of goods were cleared. In the present case, the helicopter was cleared in 2008. The import clearance issued by the Ministry of civil aviation was very much in existence as it was to expire on 1.7.2009 He further submitted that the term NSOP is an umbrella term and is included hydro carbon/petroleum operation. Hence the fact that the respondent declared the helicopter for NSOP used to DGCA and used it for hydro carbon/petroleum operation does not amount to violation on the part of the respondent. Even otherwise the express wording of the condition no. 32(c) (which would apply to the respondent) is linked as a existing contract of petroleum operation, when the contract comes to an end the post import obligation also comes to an end. It is not a continuing obligation. The exemption becomes absolute. As per condition no. 40, which applies to construction contract wherein even after the contract expired the goods are subject to a lock in period for five years and cannot be used for any other purposes. The condition no. 40 is not applicable as helicopter has been cleared hydro carbon/petroleum operations by claiming exemption from customs duty at serial no. 217 of the Notification 21/02-Cus dated 1.3.2002 and this exemption was available subject to condition 32. He also relied on the decision of Share Medical Care v. UOI (2007) 4 SCC 573.

10. We have heard both sides and considered their submissions. The Section 149 has been reproduced herein as under:

“Section 149 - Amendment of documents - Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended:

Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.”

11. The Commissioner was required to base his decision on the documentary evidence which was in existence at the time when the goods first cleared for import. When the goods were first cleared for import in 2008, the import clearance granted to the respondent issued by DGCA was very much valid and was expired only on 1.7.2009 Therefore on this ground we do not find any fault in the order. This Tribunal has also considered the issue in the case of Senka Carbon (P) Ltd. 2007 (216) ELT 397 (Tri-Chennai) “wherein it was held that section 149 provides for amendment of bill of entry even after the clearance of goods provided the amendment is made on the basis of documents that were in existence at the time of goods were cleared” and in the case of I.P Rings Ltd. 2006 (202) ELT 61 (Tri-Chennai) wherein also this Tribunal held that the provisions of Section 149 ibid governs the amendment of import documents and export documents. Amendment of Bill of Entry is permissible on the basis of documentary evidence which was in existence of time when the goods were cleared. In the present case, when the goods were cleared, Customs Notification 21/2002 (unamended) was in existence. As its amendment through corrigendum was retrospective in effect, the amended Notification should be deemed to have been in existence at the time of clearance of the goods and, consequently, in terms of Section 149, the subject Bills of Entry were open to be amended. We further find that as per condition 32(c) of the above said Notification where the importer is a sub-contractor (such as the respondent), the primary liability of duty is of the contractor and not to a sub-contractor (such as the respondent). It if for this purpose that as per sub-clause (iii) of the conditions 32) an affidavit is required to be given by the contractor binding him to pay any duty fine or penalty that may become payable if any of the condition of the Notification are not complied with. This fact is not in dispute as the respondent has complied with condition no. 32(c) of the said Notification and the contract comes to an end, the post importation obligation is also comes to an end. As it is not continuing obligation, the exemption then become absolute. Therefore no action under Section 111(o) of the Customs Act, 1962 would lie against the respondent.

12. The intention of the exemption as regard petroleum operation is that project which are in larger national interest may receive duty free exemptions which would lead to a reduced project cost and in turn benefit public interest. The contract is the key element. It is for this reason that in order to obtain an exemption under sr. no. 217 it must be a case of ‘petroleum operation or coal bed methane operations, as the case may be to be undertaken under a contract signed with the government of India.’ Once such contract comes to an end, the obligation of the respondent also ends. There was no necessity for the respondent to file an application under Section 149 for amendment. It is also seen that both under sr. no. 217 and 347B of the said Notification no duty is payable, hence there is no loss to revenue based by the amendment to bill of entry. The case law relied upon by the ld. AR in the case of Jaslok Hospital (supra) the facts are different from the case in hand, as in that case, the appellant had failed to comply with the conditions laid down under para 2 and sought exemption under para 1 instead of para 2 annexed to the Notification. Here the respondent has complied with the conditions. Therefore, facts are distinguishable.

13. The decision of Amrit Paper (supra) are not relevant to the facts of the case in hand.

14. On the other hand, we find that in the case of Share Medical Care (supra) the Hon'ble Supreme Court has held as under:—

“Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. It is, no doubt, true that initially the appellant claimed exemption under category 2 of exemption notification which was granted. That, however, does not mean that the appellant could not claim exemption under category 3. ………. The short question which we have to answer is whether the appellant could claim exemption under category 3 and non-consideration of the said application by the Deputy Director General (Medical) is in consonance with law. Our reply is in the negative. And we are supported in our view by the decisions of this Court.” (para 10)

“……it is clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage.”

15. From the above discussion, we find that as the respondent has completed the contract with Reliance Industries Ltd. and fulfilled the condition under sr. no. 217 of Notification 21/2002 and on the date of import the respondent were entitled to claim the benefit under sr. no. 347B of the said Notification for home consumption, therefore, we do not find any infirmity with the impugned order. Same is upheld. The appeal filed by the revenue is dismissed.