TMI Blog1992 (10) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... aid notification, nor did they pay duty under protest. He further observed that the application for duty exemption before the competent authority i.e. the Director General of Health Services, Government of India, was also not made before the importation of the goods in question. As such, the duty exemption certificate was not in existence at the time of clearance of the goods; the benefit of me said Notification 64/88 cannot, therefore, be granted at this stage. Hence., the claim was rejected. 1.2. On appeal to the Collector of Customs (Appeals), the appellants herein did not succeed. The lower appellate authority has held that the notification envisages that the importer should furnish at the appropriate time the certificate referred to in para (b) of the proviso clause of the said notification. It also provides in clause (a) of the said proviso that the importer is bound to produce evidence to the Assistant Collector of Customs at the time of clearance of the said hospital equipments that the same is being imported in accordance with the conditions specified in that paragraph. The said authority has, therefore, held that the notification unquestionably indicates that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all equipment, apparatus and appliances, including spare parts and accessories thereof......... (hereinafter referred to as the hospital equipment), the import of which is approved either generally or in each case by the Government of India in the Ministry of Health and Family Welfare, or by the Directorate General of Health Services to the Government of India as essential for use in any hospital specified in the Table below from the whole of Customs duty and the additional duty of Customs. 2.3. Para 2 of the said notification sets out the guidelines regard to which is to be kept before issue of the certificate by the competent authorities, as aforesaid. 2.4. Para 3 of the said notification envisages that approval certificate, as aforesaid, is not applicable to spare parts subject to the conditions, mentioned in that para. 2.5. Table to the said notification envisages submission of approval certificate or otherwise, as aforesaid, mentioned in that para. We set this out in full because the controversy centres around the wordings of this Table :- "TABLE 1. All such hospitals as may be certified by the said Ministry of Health and Family Welfare, to be run or substantially a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, and (iv) that such hospital, when starts functioning would be relatable to a hospital specified in paragraph 1,2 or 3 of this Table, and the said Ministry of Health and Family Welfare certifies to that effect: Provided that - (a) in the case of a hospital relatable to paragraph 3 of this Table, the importer produces evidence to the Assistant Collector of Customs at the time of clearance of the said hospital equipment that the same is being imported in accordance with the conditions specified in proviso to that paragraph; (b) the importer shall give an undertaking in writing to the Assistant Collector at the time of clearance of the said hospital equipment that the importer shall furnish certificates from the said Ministry of Health and Family Welfare or from the Directorate General of Health Services, Government of India, within such a period as the Assistant Collector of Customs may specify in this behalf or within such extended period as the Assistant Collector of Customs, on sufficient cause being shown, may allow in each case, to the effect - (i) that such hospital equipment has been installed in the hospital, and (ii) that such hospital has started functioning; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey had set in motion the said procedure by applying to the DGH.S, West Bengal, well before the date of importation of the goods, on 20-12-1988. Only after obtaining the essentiality certificate from DGHS, West Bengal and NMI certificate from the appropriate authority could the appellants apply to the DGHS, New Delhi because the form of application to DGHS, New Delhi spoke of enclosing the said two certificates i.e. essentiality certificate and NMI certificate. In the aforesaid circumstances, learned Consultant submits that the benefit of the said Notification 64/88 should not be denied to them on the superficial reason that the essentiality certificate was not in existence or that the appellants were legally bound to produce the certificate at the time of clearance of the goods. In support of his pleas, the learned Consultant relies on the following citations :- (1) 1990 (46) E.L.T. 434 - HMT v. Collector of Customs (Appeals). In this citation the Tribunal has held that the appellants have done what was required by them to do to get the certificate and right from the beginning it could be seen that their case is that the importation was intended for the purpose for which the DG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras High Court has held that non-production of end use certificate even at the time of filing the refund application before the Assistant Collector of Customs does not disentitle the petitioner from claiming the benefit of exemption under Notification No. 2/69. The production of such a certificate in itself does not create the right but the right to refund arises by reason of its user in the manufacture. Therefore, if the end use certificate was produced before the appellate or revisionary authority, it should have been taken into account for the purposes of granting refund. It further held in para 4 that the petitioner had paid the full amount of duty on the goods imported. There was thus no obligation on its part to execute the bond if he wants to claim a concessional rate of duty under the aforesaid notification. It is enough, if he produces certificate at the time of claiming excess refund of duty, that the raw material has been used in the manufacture of the products mentioned in the said notification. 3.1. The learned Consultant has submitted that the ratio of the aforesaid decisions applies squarely to him. There was no obligation in terms of para 4 of the Table to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king, the appellants should have followed the procedure of provisos (b) to (d) in para 4 of the Table to the Notification and they could get the benefit of the notification even at the time of clearance of the hospital equipment. Question is whether they can avail of the refund of duty if they cleared the goods on payment of duty without following the procedure mentioned in provisos (b) to (d). In our view, this cannot be denied to the appellants in view of the judgments of Supreme Court in the case of Auto Tractors, mentioned supra and of Madras High Court in the case of L.M. VEN Moppes. The judgments relied on by the learned JDR, has no relevance to the facts and circumstances of this case and to the issues involved herein. Case of Heavy Engineering Corporation reported in 1990 (45) E.L.T. 131 (Tribunal) relied upon by the lower appellate authority in fact helps the appellants rather than the department. The overall trend of the judgments, mentioned in the aforesaid judgment of the Tribunal indicates that non-production of essentiality certificate is a forgivable failure and not an insurmountable lapse. It is on this basis that the Tribunal felt in the case of Heavy Engg. Corpo ..... 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