Customs, Excise and Gold Tribunal - Bangalore
Astra Microwave Products Limited vs The Commissioner Of Customs And Central ... on 3 May, 2007
Equivalent citations: 2007(120)ECC291, 2007ECR291(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. The issue is common in all these 14 appeals of the appellant, hence, they are taken up together for disposal as per law. The Commissioner (A) has disposed of 14 appeals by common Order-in-Appeal No. 24-37/2006 dated 30.6.2006 disposing of 14 Orders-in-Original dealing with refund claim.
2. The appellant had imported goods for supply to (1) Defence Electronic Research Laboratory, Hyderabad (2) Bharat Electronics Limited, Bangalore (3) DRDO, Bangalore and Hyderabad (4) Space Application Centre, Ahmedabad. The goods admittedly without dispute are exempted under the Notification No. 39/96 Cus. dated 23.7.1996 and No. 51/96 Cus. dated 23.7.1996 exempting from levy of duty provided certificates are produced at the time of import in each of the cases, issued by the respective authority specified in the Notifications. The appellants at the time of import had clearly submitted to the authorities that they would produce the necessary certificates. However, there was a delay in issue of certificates by the concerned authorities and for that reason their subsequent production of certificates were not accepted and refund claim were rejected.
3. It is submitted by the learned JDR that the assessment had been finalized and therefore, they are not entitled to the refund and rely on the Apex Court judgment rendered in the case of Priya Blue Ltd. v. CC (Prev.) and Sun Export Corporation v. CCE :
4. It is submitted by the learned Counsel that the question of rejection of refund claim does not arise, as the production of certificates in terms of Notification is only a procedural requirement and that cannot be a reason for rejection of the refund claim when all necessary information required for refund had been furnished. He submitted that the imported goods are exempted from levy of duty as per the Notification.
4.1 The learned Consultant submitted that this very issue was subject matter of Appeal No. C/368/2003 in the case of CC, Bangalore v. Integra Micro Systems (P) Ltd. . This Bench has clearly distinguished both these citations of the Apex Court cited by the learned JDR. The imports in the cited case was also made on behalf of specified industries in the Notification and in an identical situation, the Tribunal noted that non-production of certificates at the time of clearance was only a procedural requirement and relied on large number of judgments. He produces a copy of the order and submits that issue is covered in their favour and prays for allowing the appeal with consequential relief.
5. We have carefully considered the submissions and find that in an identical situation of a competing importer on similar facts, the Commissioner, Bangalore had overruled the department's contention in rejecting the refund claim due to belated production of certificate and the Commissioner had allowed the refund claim. The same was contested before this bench in the case of CCE v. Integra Micro Systems (P) Ltd. (supra). The Tribunal after due consideration distinguished the judgments of Priya Blue and Sun Export Corporation. The ruling of CCE v. Integra Micro Systems clearly applies to the facts of this case. The findings recorded in Para 3 to 6 are reproduced herein below.
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) and also relied on the judgment of the Supreme Court rendered in the case of Sun Export Corporation v. CC, Bombay .
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 , 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 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 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.
Respectfully following the ratio of the above noted judgment, the impugned order is set aside and the appeals are allowed with consequential relief along with demand of interest as per law.
(Operative portion of this Order was pronounced in open court on conclusion of hearing on 30.04.2007)