TMI Blog1998 (8) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... round that the Bill of Entry has been provisionally assessed and therefore, the claim for refund at that stage cannot be considered. The Collector noted that in two claims the period of importation is different i.e. dated 16-8-1985 and dated 19-6-1986 and in the later importation, the Notification No. 179/86 was rescinded and a new Notification No. 94/86, dated 1-3-1986 came into force. He has held that they did not produce the D.E.C. certificate as mentioned in the Notification. They had also not produced the end use certificate from the Textile Commissioner. The Collector noted that the appellants along with their letter dated 10-7-1989 submitted two different certificates issued by Deputy Director in the office of the Textile Commissioner. Both the certificates had recommended refund of duty in terms of Notification No. 155/86 for the consignments of 1985 and Notification 155/86 for the goods imported in 1986. These certificates had been issued on 5-7-1989. He therefore, held that the details of these certificates clearly showed that the appellants did not have required duty exemption certificates at the time of imports. Therefore, he rejected their claim on the ground that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the issue is no longer res integra inasmuch as the Tribunal in a series of judgments have noted in a similar cases, that even if party had filed the application, belatedly for obtaining eligibilty certificate, even after the importation the same be produced for utilising the benefit and it cannot be denied so long as the end use certificate had been produced and the other substantive portion of the Notification had been complied with. It is his submission that the authorities below were not justified in rejecting the claim in the light of well settled proposition laid down in several judgments. In this regard he relied on the following judgments : 1. L M Ven Moppes Diamond Tools India Ltd. v. Government of India - 1981 (8) E.L.T. 165 2. Vaz Forwarding Pvt. Ltd. v. Collector of Customs, - 1983 (14) E.L.T. 2019 3. Birla Institute of Technology v. Collector of Customs - 1991 (56) E.L.T. 753 4. Bharat Earth Movers Ltd. v. Collector of Customs - 1994 (70) E.L.T. 412 8. It is further contended that the Assistant Collector was not justified in rejecting the claim in respect of Appeal Nos. C/3220-3221/90-B2, on the ground of provisional assessment of the Bill of Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of L M Ven Moppes Diamond Tools India Ltd. (supra), has noted specifically therein the finding of the Assistant Collector that the petitioner did not follow the procedure for executing a bond at the time of import, but it paid entire duty as per the Indian Tariff Act, and further it had used the synthetic grifts for the manufacture of grinding wheels, claimed the refund of excess duty paid on the basis of the notification. It is also noted that the Assistant Collector rejected this claim as unsubstantiated on the ground that despite sufficient time having been allowed, the petitioner had not produced the necessary documents satisfying the conditions relating to user of the imported material. The petitioner had filed a revision petition before the Government of India, Ministry of Finance. By the time the revision petition was filed, the petitioner was able to secure the `End Use Certificate from the Director of Industries and Commerce, Madras and it produced the same before the Government of India. However, the Government of India, rejected the revision petition on entirely different grounds from that on which they were dismissed by the Assistant Collector and the Appellate C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. In the case of Vaz Forwarding Pvt. Ltd. (supra), the Three Member Bench of the Tribunal noted the ground of rejection of refund claim inasmuch as that the appellants had applied for NMI certificate on 21-1-1990, when the goods had been shipped on 10-1-1980. However, the Bill of Entry had been filed on 7-2-1980. Considering the entire facts and circumstances of the case, the Bench felt that a highly technical view in the matter should not be taken as the appellants though later had fulfilled all the conditions of the Notification. Therefore, the Tribunal has held that the appeal deserved to be allowed by granting the benefit of the Notification in question. As can be seen from this citation the application had been filed after the shipment of the goods. 13. In the case of Birla Institute of Technology (supra), the Three Member Bench of the Tribunal again in a similar circumstances, allowed the claim by applying the ratio of the judgment rendered in the case of Vaz Forwarding Pvt. Ltd. Further it was noted that the application dated 17-10-1988 for issuance of NMI certificate for the Text Processing Package was in continuation of the application filed on 8-10-1983 for the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court that - Literally exemption is freedom from liability, tax or duty and in fact an exem- ption provision is like an exception and on normal principle of interpretation of statutes it is construed strictly either because of legislative intention or on economic justification of inequitable burden or progressive approach of fiscal provisions intended to augment State revenue. But once exception or exempt-ion becomes applicable no rule of principle requires it to be construed strictly. 17. The further observation of the Supreme Court was noted which is as follows :- Do not extend or widen the ambit at the stage of applicability. But once that hurdle is crossed construe it liberally . 18. The Tribunal held that it will be in the interests of justice and reasonable to hold in the facts of the present case that a liberal interpretation of the notification is called for, and held that the non-production of the Essentiality Certificate at the time of clearance as stipulated in the notification need not be fatal to the claim for exemption under that notification on the facts and in the circumstances of the present case. The Tribunal dealt with these points and all the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding that this certificate was not even otherwise valid for the goods imported and cleared before 6-4-1992. It noted the judgment in the case of Hindustan Machine Tools as reported in 1990 (64) E.L.T. 434, wherein the Tribunal allowed the appeal on the ground that the appellants had done whatever was required by them to be done to get the certificate and right from the beginning it could therefore be seen that their case is that the importation was intended for the purpose for which DGTD certificate was applied for. In the case the DGTD certificate applied for was for the goods imported and the same was issued for that purpose, therefore; it held that it did not see any reason why this certificate should not be accepted. The Tribunal noting this portion of the judgment of Hindustan Machine Tools observed that the appellants in that case had made an application before the importation of the goods and the certificate issued covered the imported goods. However, the Tribunal noted 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 and that ground held that there is a failure of substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o of Mangalore Chemicals and Fertilisers Ltd. and Liberty Oil Mills, wherein it was observed that the benefit of doubt should be given to the Government. Production of certificate and its compliance of terms of Notification is a substantive in nature for availing the concession under the Notification and not a mere procedural lapse. Therefore, we notice that in Webel Telematik Ltd. case the Tribunal has not differed from the earlier judgments but has examined threadbare and noted that in earlier cases, application had already been filed before the concerned authorities prior to the filing of Bill of Entry and the delayed in obtaining the certificate, was a mere procedural lapse. In the present case, the situation is totally different inasmuch as that application for seeking the benefit had been filed before the concerned authorities after the importation of the goods and the certificates have obtained long thereafter. Therefore, the ratio rendered in the case of Webel Telematik Ltd. fully covers the present case and this judgment is not distinguishable. We have to further observed that the Tribunal s observations that applying for an eligibility certificate prior to importation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds are required for the purpose of initial setting up or for assembly or manufacture of the specified article. The certificates required are only in the nature of evidence that these are so required. Once the fact of exemption, which is the substantive part of the law, is satisfied the certificates assume a purely procedural character. It is not disputed that the goods are required for the specified purpose and the necessary certificates had been subsequently furnished. In fact, series of decisions referred to earlier point out that Tribunal has been taking a consistent view that the benefit of exemption if the requirements of notification otherwise have been substantially complied with cannot be denied. 21. I do not find any stipulation regarding application being filed before importation of goods in the notification itself. The distinction made between the case discussed in case of Vaz Forwarding Pvt. Ltd. where they had applied for the certificate before the shipment of the goods and Webel Telematics Ltd. where it has been held that application should have been made before clearance of goods is not understood. What is central to the issue is whether goods as such are eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs - 1994 (71) E.L.T. 524 that the appellants are not entitled to the benefit of the relevant notifications in different appeals herein because they had applied for the certificates after importation or clearance of the goods. 26. On the other hand, ld. Technical Member of the original Bench has held that substantive requirement of the notifications, as mentioned above, is that the goods are required for the purposes of initial setting-up or for assembly or manufacture of the specified article. The certificates required are only in the nature of evidence that these are so required. Once the substantive part of the notification i.e. required of the imported goods for the specific purpose mentioned in the notification is satisfied, the production of certificates assumed the purely procedural character. It has therefore been held by the ld. Technical Member that the appellants are entitled to the benefit of the notification, it is immaterial whether they applied for the certificates subsequent to importation and clearance of the goods or before it. He has therefore, ordered that the matter may be remanded to the original authority for deciding the cases afresh in the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto account various other judgments relied upon by the ld. Advocate for the appellants 31. I have carefully considered the pleas advanced from both sides. I observe that no doubt the judgment of the Tribunal in the case of Webel Telematic is against the appellants, Webel Telematic also takes into account several judgments of the Tribunal namely Wockhardt Medical Centre, Birla Institute of Technology, Hindustan Machine Tools, H.E.C.L. and Himson Textile Engg. Industries but the point of difference before me is not whether Webel Telematic is applicable in this case but point of difference is whether the appeals should be dismissed or whether the appeals are required to be remanded. 32. I am of the considered view that production of certificate is not a sine qua non at the time of importation or clearance of goods. Production of the certificate is only a procedural formality and it can be produced at any stage by the importer as rightly pointed out by the ld. Technical Member Sh. S.K. Dhar and that the right of exemption to the imported goods accrues on satisfaction that the goods imported are to be used for initial setting-up or for assembly or manufacture of any article specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve a certificate to that appellant in terms of Notification No. 200/79 and this certificate was also produced before the Customs authorities. The claims of that appellant were rejected up to the stage of Tribunal. The Tribunal while rejecting the claim observed that the claim of the appellant at the time of clearance was under different Notification No. 179/80-Cus. The Tribunal also observed that the approved manufacturing programme though available all along with the appellants was not produced at the time of clearance before the Asstt. Collector. The Apex Court observed that the Tribunal erred in denying the appellant the benefit of Notification No. 200/79. It held that the relevant term of the notification was that the importer had only to satisfy the Customs authorities that it had an approved industrial programme for the manufacture of tractors by production of certificate from the DGTD. The second set of certificate applied for and obtained subsequently by the importer therein constitutes, sufficient evidence that would entitle the appellants to the concession under Notification No. 201/79. I observe that the ratio of the Apex Court s judgment in Auto Tractors (supra) apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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