IMPORTANT POINT
Hierarchy of courts emphasized.

JUDGMENT

H.L. Dattu, J. —

1) This appeal is directed against the Order of the Customs, Excise and Gold (Control) Appellate Tribunal, West Zonal Bench [hereinafter referred to as ‘the Tribunal’] dated 12.05.2006.

2) The issue raised for our consideration and decision in this appeal is: ‘Whether the adjudicating authority was justified in rejecting the appellant’s claim for refund of the duty paid under the Customs Act, 1962 (hereinafter referred to as, “the Act”) without considering Essentiality Certificates, produced on a later date, particularly, in view of the specific and positive directions issued by the Delhi High Court.’

3) The brief factual matrix involved in this appeal are:

The appellant is an importer of spares and stores for use on rigs for petroleum operations pursuant to contract with Oil and Natural Gas Corporation Limited [hereinafter referred to as ‘ONGC’]. The appellant has imported three consignments of spares and duly filed the Bills of Entry dated 10.06.2002 and 25.06.2002 in respect of these imported goods. These imported goods are covered by List 12 of Notification No. 21/2002, Customs, dated 01.03.2002 as goods exempted from customs duty on fulfilling Condition 29 of the said Notification, which requires the importer to produce Essentiality Certificates issued by Director General of Hydrocarbons [hereinafter referred to as ‘the DGH’] to the effect that these imported goods were required for the petroleum operations. The DGH issues the Essentiality Certificates only on the strength of recommendatory letters issued by ONGC.

4) The appellant had requested ONGC to issue recommendatory letters in order to enable the DGH to issue the Essentiality Certificates, which were not granted. The DGH, in the absence of such recommendatory letters, refused to entertain the appellant’s request for the Essentiality Certificates.

5) In this backdrop, the appellant requested the Customs authority, vide endorsement on Bill of Entry presented on 10.06.2002 for one consignment and vide letter dated 28.06.2002 for other two consignments, to make provisional assessment of the said imported goods in view of the pending proceedings for procurement of the Essentiality Certificates. However, these requests were not acceded to, and the appellant, on account of commercial exigencies, had cleared the said three consignments of the imported goods on full payment of the customs duty pursuant to the Order of the Customs Authority dated 15.06.2002, 03.07.2002 and 09.07.2002.

6) In the month of July 2002, the appellant filed a Writ Petition before the Delhi High Court inter-alia challenging the refusal of ONGC to issue the requisite recommendatory letters and also the refusal of the DGH to issue the Essentiality Certificates. The High Court, by its ad-interim order dated 30.07.2002, directed ONGC to take a final decision in the matter within a fixed time frame and granted liberty to the appellant to clear consignments on payment of duty under protest and subject to further orders of the High Court.

7) Subsequently, ONGC, whilst complying with the abovementioned directions of the High Court, issued recommendatory letters and on the strength of these recommendatory letters, the DGH issued Essentiality Certificates to the appellant. In view of this, the said Writ Petition was finally disposed of by the High Court by its order dated 11.03.2003, wherein the High Court directed the customs authorities to dispose of the appellant’s refund claim of customs duty paid by taking into consideration the Essentiality Certificates issued by the DGH in the following terms:

“Mr. Setalvad, learned senior counsel for the petitioners, on the other hand, submits that in view of the fact that almost all essentiality certificates have been issued by Respondent No. 2 on the recommendation of Respondent No. 3 the only controversy which survives for consideration is with regard to the disposal of the refund applications filed by the petitioner with the customs auth