Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Central Excise, ... vs M/S Dynaspede Integrated Systems Ltd. on 30 August, 2001
Equivalent citations: 2000ECR450(TRI.-CHENNAI)
ORDER
S.L. Peeran, Member (Judicial)
1. The Revenue has filed the above said stay application in their appeal seeking stay of the operation of the order-in-appeal passed by the Commissioner (Appeals) Madras by his order dated 23.11.2000 by which he has allowed their appeal granting the benefit of notification No.108/95 dated 20.11.1995 on the plea that the requisite certificate was produced prior to the adjudication along with the reply of show cause notice. However, the Asstt. Commissioner had rejected their certificate on the ground that the certificate was not produced at the time of clearance of the goods. The Commissioner in his order in para 5 & 6 has recorded as follows:-
"I have carefully gone through the records of the case and the oral and written submissions made thereunder. I have also perused the case laws relied upon by the appellant. The issue for my consideration is the maintainability of the impugned order passed by the lower authority. It is seen that the Asstt. Commissioner has held that the appellants are not eligible for the benefit of Notification No. 108/95 dated 20.8.95 on the ground that the appellant have not produced the certificate required under the above notification. Production of certificate is one of the condition required under the notification to know the genuiness of the transaction and the requirement of goods by the project. In the grounds of appeal, the appellant has already stated that they could not wait till the certificate is received from the Govt. of India since the material was required urgently by the project. However, the appellant has produced the certificate issued by the Dy. Secretary to the Govt. of India as required under the notification on 5.1.2000. I also find from the records that the appellant has sent the intimations and declarations to the department much before the removal goods. From the above it is clear that the appellant had no intention to evade payment of Central Excise Duty. In view of the above, the stand taken by the Asstt. Commissioner is not sustainable in law.
In the light of the above discussions, the impugned order is set aside and the appeal is allowed."
2. The above findings is challenged both in the stay application and in the final appeal.
3. We have heard Ld. DR Shri Soundarajan who seeks stay of the operation of the order. According to Revenue, the certificate is required to be produced at the time of clearance of the goods as noted in the notification itself. Since there was a violation of this term of the notification, subsequently the assessee producing the certificate will not cure the defect. Therefore, the Asstt. Commissioner was justified in not accepting the certificate and the order of the Commissioner held that the certificate could be accepted even subsequently is not correct as per law.
4. Ld. Counsel submits that the certificate was required to have been produced form Deputy Secretary to the Govt. of India. There was a delay in obtaining from the Govt. of India. However, the terms of the notification requiring production of certificate is a procedural one. He contends that there is no substantive violation of the notification. He submits the issue is already covered by Tribunal's judgment rendered in the case of Birla Institute of Technology Vs. CC as reported in 1991 (56) ELT 753 by which the Tribunal relying on its earlier judgment in the case of M/s. Vaz Forwarding Pvt. Ltd. Vs. CC, Bombay as reported in 1983 (14) ELT 2019 has accepted the late production of certificate in a similar circumstances and held it to be only a procedural requirement. He files a copy of the judgment and contends as the issue is fully covered, the stay and the appeal can be decided today itself.
5. Ld. DR has no objections for taking up the appeal but reiterates the ground taken up in the appeal and submits that the judgments is distinguishable.
6. On a careful consideration of the submissions, we notice that the appellant had claimed the benefit of notification No.108/95 dated 20.11.1995 without producing the requisite certificate in advance to the Department at the time os clearance of the goods and for that reason the Asstt. Commissioner did not accept the late production on 5.1.2000 after clearance of the goods but before the adjudication of the order.
7. The Ld. Commissioner (Appeals) has noticed from the extracted findings and has referred to the case law which is cited before us to upheld the parties contention. The assessee's contention is that production of certificate is one of the condition required in the notification to know the genuineness of the transaction and requirement of goods by the project. They have produced the certificate received from Govt. of India which was issued belatedly. However, that does not take away their right to claim the benefit. We have perused the grounds of appeal in which we notice the total duty confirmed is Rs.2,93,619/- solely on the grounds that the certificate has not been produced before the clearance of the goods. Although this is the conditions laid down in the notification but the said condition has to be held as procedural one. In the light of the ratio of the Apex Court judgment rendered in the case of Mangalore Fertilisers & Chemicals Vs. CC as reported in 1991 (55) ELT 437 (SC). The Apex Court has clearly laid down that so long as there is substantive compliance of the notification, the benefit cannot be denied. The Tribunal in the case of Birla Institute of Technology Vs. CCE (Supra) (a three member Bench) clearly states that the delay in submissions of certificate will not affect grant of the exemption. The findings recorded in para 5 to 7 are produced herein:
"We have heard both the sides and gone through the records of the case. We find that the Tribunal in the case of Vaz Forwarding Pvt. Ltd. Vs CC, Bombay reported in 1983 (14) Elt 2019 had examined the question whether exemption under Notification No. 211-Cus dated 2.8.1976 was admissible in respect of certain scientific equipment when the N.M.I. Certificate was not available at the time of importation of the goods and even the application for the certificate was filed after the shipment of the goods. The relevant extract from the Tribunal's decision is reproduced below:
"The only ground on which the appellants' claim for refund had been rejected is that they had not applied for N.M.I. certificate before the shipment of the goods, otherwise there is no dispute that the appellants and the goods are entitled to benefit of notification in question. 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 appellant's appeal deserves to be allowed"
Since the facts in this case are similar, relying upon the view taken by the Tribunal in the decision quoted above we hold that the NMI certificate issued to the appellants after the clearance of the goods was acceptable for the purpose of exemption under Notification No. 70-Cus dated 26.3.1981.
Accordingly, the appeal is allowed. The orders of the lower authorities are set aside with consequential relief to the appellants."
8 In view of the laid down proposition of the Apex Court in the case of Mangalore Chemicals & Fertilizers (Supra) and also in the Tribunal's judgment rendered in the case of Birla Institute of Technology (Supra) we do not find any infirmity in the order passed by the Commissioner. He has rightly followed the judgment and Revenue has not made out any other grounds as to why the said judgments does not apply to the facts of the case. Therefore, while rejecting the stay application, we take up the appeal and respectfully following the judgment noted above we do not find any merits in the revenue's appeal and dismiss the same.
(Order pronounced and dictated in open court)