TMI Blog1995 (6) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Bill of Entry. Under Section 15, that rate is applicable and not the notification rate of duty. In that view of the matter, the rejection of the refund claim based upon reassessment of rate of duty is correct and proper. The appeal lacks merit and it is rejected. Briefly stated the facts of the case are that the appellants filed refund claims on the strength of a Duty Exemption Certificate issued by D.G.T.D. which was not submitted by the appellants at the time of clearance of the goods. In the absence of the said certificate, the goods were assessed to duty on merits. Later on when the Essentiality certificate came in possession of the appellants, they claimed refund stating that they were entitled to concessional rate of duty in terms of Notn. No. 60/88 read with Notification No. 59/88. The claims for refund were rejected by the Asstt. Collector. The order of the Asstt. Collector was confirmed by the Collector of Customs (Appeals). 2. Shri L.P. Asthana, the ld. Advocate appearing for the appellants submitted that in the instant case, six appeals as under are involved :- Appeal No. C/388/93-B in respect of Bill of Entry No. AI-232, dated 10-1-1992 Appeal No. C/389/9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that for getting assessment at concessional rate in terms of an exemption notification, Essentiality certificate is required to be presented at the time of clearance; that this condition is very clear in respect of Notification No. 333/88-Cus., dated 31-12-1988; that in other types of exemption notification, there was no such stipulation; that in the second type of notification, in the absence of Essentiality certificate, the importer could pay the duty at higher rate on merit and then claim refund on the strength of Essentiality certificate procured subsequently. The ld. counsel therefore prayed that the Essentiality certificate dated 6-4-1992 may be accepted for covering the goods cleared before 6-4-1992 and the order-in-appeal may be set aside. In support of his contention, the ld. counsel cited and relied upon the ratio of the decision of cases reported in 1987 (31) E.L.T. 117, 1991 (56) E.L.T. 753, 1991 (56) E.L.T. 470, 1992 (62) E.L.T. 719, 1983 (14) E.L.T. 2019, 1989 (42) E.L.T. 124, 1991(55) E.L.T. 437, 1981 (8) E.L.T. 165 and 1990 (46) E.L.T. 434. 4. Shri K.K. Jha, the ld. SDR appearing for the respondent submitted that in one of the conditions in clause (b)(1), it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed certificates. For this purpose, the Tribunal relied on the ratio of the decision of the cases reported in 1991 (55) E.L.T. 437 (SC) and 1992 (57) E.L.T. 449 (T). 6. Examining the present issue in the light of the above ruling, we find that the appellants had applied to the D.G.T.D. on 29-1-1992 for grant of the certificate. We also observe that Bill of Entry No. A.I. 232 in Appeal No. C/388/93 was presented on 10-1-1992 Similarly Bill of Entry No. A.I. 248 in Appeal No. C/389/93 was presented on 10-1-1992. Again Bill of Entry No. 277 in Appeal No. C/390/93 was presented on 13-1-1990 which is much before the date, i.e., 29-1-1992 and therefore the ratio of the decision cited and relied upon by the appellants will not be applicable to the above-mentioned three appeals. In respect of the remaining three appeals, the Bill of Entry was presented subsequent to the date of the application made to the D.G.T.D. and therefore these three appeals namely, Appeal No. C/391/93, Appeal No. C/392/93 and Appeal No. C/522/93 will be covered by the ratio of the decision cited and relied upon by the appellants. The appellants also cited and relied upon the decision of the Tribunal in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the facts of the instant case in the light of this decision, we find that before 29-1-1992 there was no compliance of Notification No. 60/88 under which the concession had been prayed nor was an undertaking furnished to the Assistant Collector at the time of clearance of the goods and thus there was no compliance of Notification and therefore the ratio of the decision of this case will not be applicable to the facts of the present case. The ld. counsel also cited and relied upon the decision of the Tribunal in the case of Birla Institute of Technology reported in 1991 (56) E.L.T. 753 in which the Tribunal had held that Considering the entire facts and circumstances of the case, the Bench feels that a highly technical view in the matter should not be taken as the appellants though later have fulfilled all the conditions of the notification. In this view of the matter, the appellants appeal deserves to be allowed. Comparing the facts in the two cases we observe that none of the conditions was satisfied in the instant case in as much as neither the Essentiality certificate was produced nor any claim was made for such benefit at the time of the clearance of the goods. The Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate was applied for. In case the D.G.T.D. certificate applied for was for the goods imported and the same was issued for that purpose, we see no reason why this certificate should not be accepted, We find in this case cited by the appellants that the application was made before the importation of the goods and the certificate issued covered the goods imported. However in the case before us we find that no doubt application was made on 29-1-1992, but the certificate was issued on 6-4-1992 and was made valid for 12 months after the date of issue. We have already discussed the point regarding submission of application on 29-1-1992 in one of the preceding paragraphs and the same reasoning will apply to the instant case also. The ld. counsel had also referred to the decision of this Tribunal in the case of HECL reported in 1990 (45) E.L.T. 131 in which the Tribunal had held that non-production of the essentiality certificate becomes only forgivable procedural failure and not an insurmountable lapse. In the instant case, we observe that even the application for obtaining the essentiality certificate in respect of three appeals was made subsequbent to the date of clearance of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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