Customs, Excise and Gold Tribunal - Bangalore
Commissioner Of Cus. vs Integra Micro Systems (P) Ltd. on 7 December, 2004
Equivalent citations: 2005(180)ELT174(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. This is a Revenue appeal against the O-I-A No. 358/2003-Cus. dated 28-8-2003 by which the Commissioner, after detailed examination of the case in the light of several judgments of the Apex Court and Tribunal, has held that the importer, assessee is entitled for the benefit of Notification No. 51/96-Cus. dated 23-7-1996 in respect of various equipments like DVD Juke Box, CD Rom Changer & Disc. Magazine for CD Rom Changer imported by the assessee for the Department of Space, Ministry of Defence, for supply to the National MST Radar facility. The assessees could not produce the required Duty Exemption Certificate and the delay was due to procedural delays. However, the same was obtained after the clearance of the goods and the same had been produced for the purpose of grant of refund in the matter. The only ground on which the claim was rejected by the original authority was that there was a delay in production of the requisite duty exemption certificate issued by the Government and that it should have been produced at the time of clearing the goods and as the same had not been done, the certificate cannot be accepted. The Commissioner has found that there is no dispute with regard to the contents of the Certificate issued by the Government of India. He found that the department of Space, vide their letter dated 10th March, 1987 had endorsed the purchase order to the assessee importer and the same was in order. He relied on the Apex Court judgment rendered in the case of Dunlop India Ltd. v. Union of India -1983 (13) E.L.T. 1566 (S.C.) for accepting the belated production of the Certificate. He has also held that there was no unjust enrichment in the matter. He has relied on the judgment of the Tribunal rendered in the case of Rajasthan Rajya Sahakari Spinning and Weaving Mills v. CCE, Jaipur - 2002 (140) E.L.T. 235 (T) wherein it has been held that if delayed submission of the certificate could be accepted and it is not fatal for grant of benefit of notification.
2. The Revenue in this appeal contend that the Certificate ought to have been produced along with the Bill of Entries and the same cannot be produced with the refund application and the acceptance of the certificate issued by the Department of Space, Government of India has not made the assessee eligible for the benefit of the Notification.
3. We have heard the learned JDR Shri Rajaram for the Revenue and the learned Advocates Shri Nagaraja and Shri T. Rajeswara Sastry for the respondents.
4. The learned JDR pointed out that the refund was only in the nature of re-opening the assessments and once the goods have been cleared, the assessments cannot be reopened as held by the Apex Court in the case of Priya Blue Industries Ltd. v. CC (Preventive) [2004 (172) E.L.T. 145 (S.C.) = 2004 (64) RLT 321 {S.C.)] and also relied on the judgment of the Supreme Court rendered in the case of Sun Export Corporation v. CC, Bombay - 1997 (93) E.L.T. 641 (S.C.).
5. The learned Counsel submitted that the refund application was not seeking reassessment of the goods but they had only sought refund to claim the benefit of Notification, which had already been done in the Bill of Entry and in terms of Notification. The certificate could not have been obtained due to procedural delays and the refund was necessitated as the certificate was issued at a subsequent time. He submits that the Supreme Court judgments are distinguishable. He submits that the benefit of exemption could be claimed at any stage and the production of duty exemption certificate is a procedural requirement and he submitted that once it is found that the benefit of exemption under Notification is available, then the benefit of the Notification should be extended. He relied on the following rulings.
(i) CCE, Cochin v. Indian Oil Corporation in Final Order No. 181/91-C dated 21-2-1991 took the view that there is no reason why the benefit of an exemption Notification cannot be claimed by preferring an application for refund of duty paid without having claimed the benefit of the same at the time of clearance of the goods. The Hon. Supreme Court maintained the decision of the Tribunal as reported in 1995 (79) E.L.T. A150 (S.C.) by dismissing the Civil Appeal filed by the Revenue.
(ii) CCE, Chennai v. Dynaspede Integrated Systems Ltd. - 2002 (147) E.L.T. 541 (Tri. - Chennai), the Hon'ble Tribunal held that the condition regarding production of certificate before clearance of the goods is a procedural requirement and exemption cannot be denied on the sole ground of belated submission of such certificate.
(iii) Rajasthan Rajya Sahakari Spg. & Wvg. Mills Federation v. CCE, Jaipur -2002 (140) E.L.T. 235 (Tri. - Del.), the Hon. Tribunal held that if all the requisite details are available and there is no discrepancy for extending the benefit of exemption then the condition of prior submission of the certificate could be relaxed.
(iv) Bajaj Tempo Ltd. v. CCE, Indore - 2004 (165) E.L.T. 323 (Tri. - Del.) it is held that the condition laid down in Notification No. 108/95-C.E. dated 28-9-95 for production of duty exemption certificate has to be held as a procedural one and the delay in submission of the certificate will not affect the grant of exemption.
In view of the well settled position in law that the requirement of production of duty exemption certificate as required in the Exemption Notification is a procedural requirement, the delay in production of the exemption certificate should not result in denial of the benefit of exemption.
(v) The Hon'ble Supreme Court in the case of Kasinka Trading v. Union of India -1994 (74) E.L.T. 782 (S.C.) has held in Para 20 of the judgment as under:
"The power to grant exemption from payment of duty, additional duty etc. under the Act, as already noticed, flows from the provisions of Section 25(1) of the Act. The power to exempt includes the power to modify or withdraw the same. The liability to pay customs duty or additional duty under the Act arises when the taxable event occurs. They are then subject to the payment of duty as prevalent on the date of the entry of the goods. An exemption notification issued under Section 25 of the Act had the effect of suspending the collection of Customs duty. It does not make items which are subject to levy of customs duty etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty etc. wholly or partially and subject to such conditions as may be laid down in the Notification by the Government in 'public interest'."
6. We have carefully considered the submissions and have perused the records and we notice from the impugned order that the Commissioner has accepted the delayed production of certificate along with the refund application to grant the benefit available to the assessee in terms of the Notification. The Certificate is not being challenged but its delayed production is challenged in this appeal. The learned JDR relied on the Apex Court judgment cited supra which dealt with the situation where the assessments of the goods were required to be reopened. The assessees had claimed for reopening of the assessments than the one in the Bill of Entry. While in the present case, the assessments are not being reopened but only the benefit of Notification is claimed. The Notification required only the production of certificate, which has been accepted by the Commissioner. Therefore, the Apex Court judgment rendered is distinguishable. We find from the judgments cited by the learned Counsel that the condition regarding production of certificate before clearance of goods is a procedural requirement and exemption cannot be denied on the sole ground of delayed submission of such certificate. Therefore, the order passed by the Commissioner is legal and proper in the light of the judgments referred to by the learned Counsel as noted supra. There is no merit in this appeal and the same is rejected.