{"id":251117,"date":"2006-08-07T00:00:00","date_gmt":"2006-08-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aban-loyd-chiles-offshore-limited-vs-commissioner-of-customs-on-7-august-2006"},"modified":"2016-05-25T13:14:31","modified_gmt":"2016-05-25T07:44:31","slug":"aban-loyd-chiles-offshore-limited-vs-commissioner-of-customs-on-7-august-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aban-loyd-chiles-offshore-limited-vs-commissioner-of-customs-on-7-august-2006","title":{"rendered":"Aban Loyd Chiles Offshore Limited … vs Commissioner Of Customs, … on 7 August, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Aban Loyd Chiles Offshore Limited … vs Commissioner Of Customs, … on 7 August, 2006<\/div>\n
Author: Bhan<\/div>\n
Bench: Ashok Bhan, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  3584-3588 of 2001\n\nPETITIONER:\nAban Loyd Chiles Offshore Limited and Ors.\n\nRESPONDENT:\nCommissioner of Customs, Maharashtra\n\nDATE OF JUDGMENT: 07\/08\/2006\n\nBENCH:\nAshok Bhan & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
BHAN, J.\n<\/p>\n
These appeals have been filed by Aban Loyd Chiles Offshore Limited, Essar
\nOil Limited and Amarship Management Ltd. against the common order dated
\n15.01.2001 passed by the Customs Excise & Gold (Control) Appellate
\nTribunal, West Regional Branch at Mumbai (for short “the Tribunal”) by
\nwhich the Tribunal has allowed the appeals of the appellants in part. The
\nappeals are directed against the part of the order which has gone against
\nthe appellants. Revenue has not come up in appeal against the part of the
\norder which has gone against it.\n<\/p>\n
FACTS<\/p>\n
In the year 1970, Oil and Natural Gas Corporation (ONGC) commenced offshore
\noperations of exploration and exploitation of oil and natural gas etc. ONGC
\nentered into contracts with various companies, which were contractors
\nacting for and on behalf of ONGC for the exploration and exploitation of
\noil and natural gas etc. The contractors carried on offshore operations
\nwith their oil rigs as per the directions and instructions of ONGC. Between
\n1970 and 1987, ONGC carried on operations from its facilities at 12,
\nVictoria Docks, Mumbai. The customs department permitted the clearance of
\ngoods to and from 12, Victoria Docks and the oil rigs, without compliance
\nof any customs formalities and without the payment of duty of customs,
\ni.e., goods were permitted to be transferred to the rigs from 12, Victoria
\nDocks and were permitted to be removed from the rigs to the shore, without
\npayment of customs duty.\n<\/p>\n
In the year 1987, ONGC shifted its offshore operations from 12, Victoria
\nDocks to Nhava Base. This was done because the facilities at 12, Victoria
\nDocks were not sufficient to meet the increased offshore operations being
\ncarried on by the ONGC. Operations at Nhava Base are large scale operations
\nand are carried on from five berths. Large warehousing and other facilities
\nare also available at Nhava Base.\n<\/p>\n
Appellants entered into separate contracts with appellants between
\n27.5.1987 to 30.6.1987. The appellants were engaged in exploration and
\nexploitation of offshore oil, gas and other related services as contractors
\nfor the ONGC. Pursuant to the contracts the appellants were to carry out
\noffshore operations for and on behalf of the ONGC. These contracts were
\nextended from time to time.\n<\/p>\n
An oil rig is a floating vessel which is towed to its required drilling
\nlocation (appointed by ONGC), and then is jacked up on four legs which
\nrests on the ocean floor. An oil rig, as an integral part thereof, includes
\ndrilling machinery to penetrate and drill into the ocean floor. Appellants
\ncarried drilling operations with its oil rigs beyond 12 miles from India
\n(i.e. outside the territorial waters of India), on the Continental Shelf.\n<\/p>\n
The procedure which was being followed as culled out by the Tribunal in its
\njudgment is as under:\n<\/p>\n
\t“The background to the notices that were issued to the appellants
\n\tresulting into the impugned orders is the same. Each of the
\n\tappellants was engaged in oil exploration in the waters of Bombay.
\n\tThey carried out exploration under contract with Oil and Natural
\n\tGas Commission (ONGC for short). Their rigs were positioned in
\n\tareas referred to as Bombay High, Panna etc. There was considerable
\n\tmovement of goods between the shore and the rigs. The extensive
\n\tmachinery in the rigs often requires repair and replacement. It was
\n\tthe practice in the custom house to treat the replacement of parts
\n\tor machinery on the rigs as shop stores and not to levy duty on
\n\tthem in terms of the provisions of the Act. Items which required
\n\trepair or replacement were to be disposed from the rigs are also
\n\tbrought back from the rigs on to the main land. Such activities
\n\twere carried out by a procedure centralized through the ONGC. ONGC
\n\twas conducting such operations from shed No. 12 Victoria Docks. The
\n\tgoods which were repaired and required to be fitted as ship stores
\n\twere cleared from customs without payment of duty on transshipment
\n\tpermits and generally escorted by an officer of the Customs to 12
\n\tVictoria Docks. From there the goods used to be sent by supply
\n\tboats under the operation of the ONGC to the rigs in question.
\n\tSimilarly, these supply boats used to bring from the rigs
\n\tunserviceable material or machinery requiring repair or replacement
\n\tinto the Victoria Docks according to law. For example, scrap which
\n\twas to be disposed of on payment of duty, a machinery part
\n\trequiring replacement was cleared on machinery passes issued by the
\n\tdepartment so as to enable it to be brought back to the rigs for
\n\tuse. Around July 1988 ONGC decided to shift its operations to
\n\tNhava, some distance away from Bombay Port. The procedure that was
\n\tbeing followed at Nhava base is elaborated in the show cause
\n\tnotice. Essentially it is this. The contractor’s, i.e., the
\n\toperators of the oil rigs applied to the Chief Engineer of ONGC for
\n\tpermission to transport goods from the base to the rigs or to the
\n\tbase from the rigs. After obtaining his permission transport of the
\n\tgoods took place. The transport took place by the supply vessels.
\n\tThe ONGC issued gate passes on application by the contractor for
\n\tmovement of the goods from the base to the rigs after their receipt
\n\tin the base. These gate passes indicated the name of the
\n\tcontractor, description of the material and name of the rig. They
\n\talso signed by the personnel of the Central Industrial Security
\n\tForce at the gate as also by the contractor’s representative.”\n<\/p>\n
Customs Department issued show cause notices dated 22.4.1994, 12.5.1994 and
\n12.5.1994 to the appellants wherein it was contended that there were
\nunauthorized loading, unloading, storage or removal of imported, indigenous
\nitems and scrap from the Nhava Base. There were three annexures to the show
\ncause notice, i.e., repair and return goods removed from Nhava Base and not
\nsent back to the rigs; scrap removed from Nhava Base, storage and return
\ngoods removed from Nhava Base and not returned to the rigs. It was proposed
\nto recover the escaped customs duty and levy penalty. Further, the extended
\nperiod of limitation in terms of proviso to Section 28<\/a> of the Customs Act
\n(for shot “the Act”) was invoked. The appellants filed their replies to the
\nshow cause notices.\n<\/p>\n
Customs Department issued two further show cause notices dated 15.2.1994
\nand 18.2.1994 to the two of the appellants, i.e. Aban Loyd Chiles Offshore
\nLimited and Essar Oil Limited by which the appellants ship stores were
\nsought to be confiscated and customs duty and penalty sought to be levied.
\nThese two appellants filed their replies to these show cause notices as
\nwell.\n<\/p>\n
One of the points taken in replies to the show cause notices was that the
\nDepartment was aware all through that Nhava Base was being used by the ONGC
\nfor supply of goods to the rigs and then receive the goods from the rigs,
\nand therefore, neither the demand for duty nor the levy of penalty was
\njustified. Similarly, it was contended that the goods could not be
\nconfiscated as the Department was all through aware that Nhava Base was
\nbeing used for loading and unloading of goods for being taken to the rigs
\nand were being received from the rigs to the main land. It was also pointed
\nout that in the present case the show cause notices did not contain an
\naverment pointing out specifically as to which of the various omissions or
\ncommissions had been committed by the appellants to invoke the extended
\nperiod of limitation thus depriving the appellants to meet the case of the
\nDepartment. It was further contended that the show cause notice did not
\ncontain the averment that the duty had escaped or short levied or not
\ncharged because of any willful misstatement or suppression of facts on the
\npart of the appellants.\n<\/p>\n
Appellants were given personal hearing and they filed their written
\nsubmissions as well.\n<\/p>\n
The Commissioner of Customs by his order dated 29.9.1997 confirmed the
\ndemand as per show cause notices and rejected the contention raised on
\nbehalf of the appellants. Demand of duty of Rs. 10,16,35,914\/- and a
\npenalty amount of Rs. 50,00,000\/- was levied on Essar Oil Limited in
\nrespect of show cause notice dated 12.5.1994; and levied a demand of duty
\nof Rs. 5,06,12,412\/- and a penalty amount of Rs. 25,00,000\/- upon Aban Loyd
\nChiles Offshore Limited in respect of show cause notice dated 22.4.1994 and
\nlevied a demand of duty of Rs. 68,66,092\/- and a penalty amount of Rs.
\n4,00,000\/- upon Amarship Management Limited in respect of show cause notice
\ndated 12.5.1994.\n<\/p>\n
Commissioner of Customs of his Orders dated 28.11.1997 and 27.1.1998
\nordered confiscation of the goods and levied duty of Rs. 4,95,406\/- and
\npenalty of Rs. 25,000\/- upon Essar Oil Limited and duty of Rs. 4,69,104\/-
\nand penalty of Rs. 25,000\/- upon Aban Loyd Chiles Offshore Limited.\n<\/p>\n
Being aggrieved by the aforesaid orders the appellants filed five appeals
\nbefore the Tribunal. The Tribunal by the impugned order disposed of all the
\naforesaid five appeals by the common order.\n<\/p>\n
Tribunal accepted the two appeals filed by the Essar Oil Limited and Aban
\nLoyd Chiles Offshore Limited directed against the order dated 29.9.1997 and
\n28.11.1997 by which the goods of the appellants were ordered to be
\nconfiscated and duty and penalty levied, by concluded thus:\n<\/p>\n
“….However, we have to keep in mind the fact that it is not possible to
\nconclude that the department was unaware of the operations of the ONGC at
\nNhava. The counsel for one of the appellants produced the correspondence
\nbetween an Additional Collector of Customs and Nhava Sheva and the ONGC.
\nThis shows that the ONGC had intimated the department of its operations.
\nFurther, the department would in any case have been aware of the general
\nnature of the activities at Nhava base from the fact that the goods which
\nwere imported as ship stores were escorted by the preventive officers of
\nthe customs. The notice was issued in 1994, six years after ONGC shifted
\nits operations. It is difficult for us to conceive that the department
\nwould not be aware for six years that the ONGC was carrying out its
\noperations. In fact the Commissioner himself records in his order that the
\ndepartment was aware of this fact, and fault lies with the ONGC and the
\ndepartment. In these circumstances we do not think that it would be
\nappropriate to confirm confiscation or imposition of penalties for actions
\nthe general nature of which the department was aware, and could have taken
\nsteps to regulate.”\n<\/p>\n
The remaining three appeals directed against the order dated 29.9.1997 were
\ndismissed. The orders of Commissioner of Customs were confirmed.\n<\/p>\n
Mr. Joseph Vellapally, learned Senior counsel appearing for the appellants
\nsubmitted at the outset that the appellants are prepared to pay the duty
\nfor the last six months immediately prior to the issuance of the show cause
\nnotice, treating the show cause notice to be valid to that extent but
\nchallenge the invocation of the proviso to Section 28<\/a> of the Act to extend
\nthe period of limitation. In view of this submission, we are disposing of
\nthese appeals only on the point as to whether the Department could invoke
\nthe extended period of limitation under proviso to Section 28<\/a> of the Act.\n<\/p>\n
Mr. Joseph Vellapally, learned Senior counsel appearing for the appellants,
\ncontends that the Tribunal erred in holding that the extended period of
\nlimitation of five years as provided under the proviso to Section 28<\/a> of the
\nAct could be invoked in the facts and circumstances of the case. That the
\nCustoms Department at all relevant time was in full and complete knowledge
\nof all the activities being carried out by the appellants and ONGC at Nhava
\nBase and prior thereto by ONGC at 12 Victoria Docks. That there is no
\nallegation in the show cause notice that the appellants had evaded the
\npayment of duty either in collusion with the officers of the customs
\nDepartment or were guilty of making willful misstatement or for willfully
\nsuppressed facts. Relying upon the judgment of this Court in Collector of
\nCentral Excise v. H.M.M. Limited<\/a>., [1995] Supp 3 SCC 322, it was contended
\nthat the notice must contain an averment pointing out specifically as to
\nwhich of the various omissions or commissions had been committed by the
\nnoticee so as to invoke the extended period of limitation. It was submitted
\nthat the show cause notice in the present case did not contain the averment
\npointing out specifically as to which of the various omissions or
\ncommissions had been committed by the appellants so as to invoke the
\nextended period of limitation. It was further contended that the extended
\nperiod of limitation could not be invoked in the present case as there was
\nnothing more positive than mere inaction or failure on the part of the
\nappellants. There was no conscious or deliberate withholding of information
\non the part of the appellants. It was also contended that Section 11-A<\/a> of
\nthe Central Excise Act is pari materia with the Section 28<\/a> of the Customs
\nAct.\n<\/p>\n
As against this Shri M.M. Paikanday, learned Senior counsel appearing for
\nthe Department took us through the show cause notice in the case of Essar
\nOil Limited (as the show-cause notices in the other cases are similar). He
\ncontended that though there is no averment in the show cause notice that
\nthe appellants were guilty of either collusion or willful mis-statement or
\nwillful suppression of facts but if show cause notice is read as a whole it
\nclearly points out that the appellants were guilty of willful suppression
\nof facts.\n<\/p>\n
Though it is contended that Section 28<\/a> of the Customs Act is pari materia
\nwith Section 11-A<\/a> of the Central Excise Act we find that there is material
\ndifference between the two provisions. The word “fraud” and the words “with
\nintent to evade payment of duty” occurring in the proviso to Section 11-A<\/a>
\nof the Central Excise Act are missing in Section 28(1)<\/a> of the Customs Act
\nand the proviso in particular. Section 28<\/a> of the Customs Act reads as
\nunder:\n<\/p>\n
“28. Notice for payment of duties, interest etc.-\n<\/p>\n
(1) When any duty has not been levied or has been short-levied or
\nerroneously refunded, or when any interest payable has not been paid, part
\npaid or erroneously refunded, the proper officer may,-\n<\/p>\n
(a)\tin the case of any import made by any individual for his personal
\nuse or by Government or by any educational, research or charitable
\ninstitution or hospital, within one year;\n<\/p>\n
(b)\tin any other case, within six months,<\/p>\n
from the relevant date, serve notice on the person chargeable with the duty
\nor interest which has not been levied or charged or which has been so
\nshort-levied or part paid or to whom the refund has erroneously been made,
\nrequiring him to show cause why he should not pay the amount specified in
\nthe notice:\n<\/p>\n
\tProvided that where any duty has not been levied or has been short-
\n\tlevied or the interest has not been charged or has been part paid
\n\tor the duty or interest has been erroneously refunded by reason of
\n\tcollusion or any wilful mis-statement or suppression of facts by
\n\tthe importer or the exporter or the agent or employee of the
\n\timporter or exporter, the provisions of this sub-section shall have
\n\teffect as if for the words “one year” and “six months”, the words
\n\t“five years” were substituted.\n<\/p>\n
\tExplanation.- Where the service of the notice is stayed by an order
\n\tof a court, the period of such stay shall be excluded in computing
\n\tthe aforesaid period of one year or six months or five years, as
\n\tthe case may be.”\n<\/p>\n
The proviso to Section 28<\/a> can be invoked where the payment of duty has
\nescaped by reason of collusion or any willful mis-statement or suppression
\nof facts. So far as `mi-statement or suppression of facts’ are concerned,
\nthey are qualified by the word “willful”. The word “willful” preceding the
\nwords “misstatement or suppression of facts” clearly spells out that there
\nhas to be an intention on the part of the assessee to evade the duty.\n<\/p>\n
This Court while interpreting Section 11-A<\/a> of the Customs Act in Collector
\nof Central Excise v. H.M.M. Ltd<\/a>. (supra) has observed that in order to
\nattract the proviso to Section 11-A<\/a> (1) it must be shown that the excise
\nduty escaped by reason of fraud, collusion or willful misstatement of
\nsuppression of fact with intent to evade the payment of duty. It has been
\nobserved:\n<\/p>\n
\t“…..Therefore, in order to attract the proviso to Section 11-A(1)<\/a>
\n\tit must be alleged in the show-cause notice that the duty of excise
\n\thad not been levied or paid by reason of fraud, collusion or
\n\twillful misstatement or suppression of fact on the part of the
\n\tassessee or by reason of contravention of any of the provisions of
\n\tthe Act or of the Rules made thereunder with intent to evade
\n\tpayment of duties by such person or his agent. There is no such
\n\taverment to be found in the show cause notice. There is no averment
\n\tthat the duty of excise had been intentionally evaded or that fraud
\n\tor collusion had been practiced or that the assessee was guilty of
\n\twilful misstatement or suppression of fact. In the absence of any
\n\tsuch averments in the show-cause notice it is difficult to
\n\tunderstand how the Revenue could sustain the notice under the
\n\tproviso to Section 11-A(1)<\/a> of the Act. ”\n<\/p>\n
It was held that the show cause notice must put the assessee to notice
\nwhich of the various omissions or commissions stated in the proviso is
\ncommitted to extend the period from six months to five years. That unless
\nthe assessee is put to notice the assessee would have no opportunity to
\nmeet the case of the Department. It was held:\n<\/p>\n
\t“……There is considerable force in this contention. If the
\n\tdepartment proposes to invoke the proviso to Section 11-A(1)<\/a>, the
\n\tshow-cause notice must put the assessee to notice which of the
\n\tvarious commissions or omissions stated in the proviso is committed
\n\tto extend the period from six months to 5 years. Unless the
\n\tassessee is put to notice, the assessee would have no opportunity
\n\tto meet the case of the department. The defaults enumerated in the
\n\tproviso to the said sub-section are more than one and if the Excise
\n\tDepartment places reliance on the proviso it must be specifically
\n\tstated in the show-cause notice which is the allegation against the
\n\tassessee falling within the four corners of the said proviso….”\n<\/p>\n
In the present case we find that in the show cause notice it is not alleged
\nthat duty of custom could not been levied or paid by reason of collusion or
\nwillful mis-statement or willful suppression of facts. The appellants were
\nnot put to notice which of the various omissions or commissions stated in
\nthe proviso were committed by them to extend the period of limitation from
\nsix months to five years. The appellants having not been put to notice did
\nnot have the opportunity to meet the case of the Department.\n<\/p>\n
Tribunal in its order while accepting the appeals filed by Aban Loyd Chiles
\nOffshore Limited and Essar Oil Limited (two of the appellants) and dealing
\nwith the point regarding confiscation of goods has held that the ONGC had
\nintimated the department of its operations from the Nhava Base. That the
\nDepartment would in any case have been aware of the general nature of the
\nactivities at Nhava base from the fact that the goods which were imported
\nas ship stores were escorted by the preventive officers of the customs.
\nThat Commissioner himself in his order has recorded that the Department was
\naware of this fact and fault lies with the ONGC and the Department. If that
\nbe the case, the appellants who were working on behalf of ONGC and as per
\nits directions cannot be accused of willful suppression of facts. All these
\nfacts were already to the knowledge of the Department. If all these facts
\nwere to the knowledge of the Department then the Department was not
\njustified in invoking the extended period of limitation. Accordingly, it is
\nheld that the Department would not be entitled to invoke the proviso to
\nSection 28<\/a> of the Customs Act and avail of extended period of limitation.\n<\/p>\n
For the reasons stated above, the appeals are partly accepted. The
\nappellants would be liable to pay the duty for a period of six months prior
\nto the date of issuance of the show cause notice and not for the subsequent
\nperiod. The demand for the subsequent period is held to be beyond the
\nperiod of limitation. Accordingly, the demand of duty and levy of penalty
\nfor the subsequent period is quashed.\n<\/p>\n
Penalty, if any, for the period of six months immediately preceding the
\nissuance of notice, for which the assessee has agreed to pay the duty, is
\nalso waived.\n<\/p>\n
The point on merits is left open. Parties will bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Aban Loyd Chiles Offshore Limited … vs Commissioner Of Customs, … on 7 August, 2006 Author: Bhan Bench: Ashok Bhan, Markandey Katju CASE NO.: Appeal (civil) 3584-3588 of 2001 PETITIONER: Aban Loyd Chiles Offshore Limited and Ors. RESPONDENT: Commissioner of Customs, Maharashtra DATE OF JUDGMENT: 07\/08\/2006 BENCH: Ashok Bhan & Markandey […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-251117","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAban Loyd Chiles Offshore Limited ... vs Commissioner Of Customs, ... on 7 August, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/aban-loyd-chiles-offshore-limited-vs-commissioner-of-customs-on-7-august-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aban Loyd Chiles Offshore Limited ... vs Commissioner Of Customs, ... on 7 August, 2006 - 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