ivil Appeal Nos. 850852 of 1988.
From the Order dated 23.10.87 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 830/83 B2 and C/3 105 & 3 105 of 87/B 2.
Order Nos.
2091 to 2093/87 B. A.N. Haksar, H.S. Anand and Mrs. M. Karanjawala for the Appellants.
G. Ramaswamy, Additional Solicitor General, Ashok K. Shrivastava and P. Parmeswaran for the Respondent.
283 The Judgment of the Court was delivered by RANGANATHAN, J.
The appellant, M/s Auto Tractors Limit ed, is a company manufacturing tractors.
For purposes of manufacture, the company imports certain parts and compo nents from abroad.
There are two notifications on the Government of India granting certain concessions from the levy of customs duty which are applicable to such goods as have been imported by.
the appellant.
The first of these, namely, Notification No. 200/79 dated 28.09.1979 (as amended from time to time) exempts components "required for the manufacture of heavy commercial motor vehicles . or of tractors" from so much of the customs duty as is in excess of 25 per cent ad valorem and the whole of the additional duty leviable there on.
The grant of the concession was subject to the fulfill ment of certain conditions specified in the notification.
The second notification was Notification No. 179/80 dated 4.9.1980 (as amended from time to time).
This notification confers an exemption in respect of parts of articles falling under specific headings in the First Schedule to the .
These admittedly included parts required for the purposes of the initial setting up or for the assem bly or manufacture of "tractors", this being an article falling under heading No. 87.01(1) of the First Schedule above referred to.
This exemption was in respect of so much of the customs duty as is in excess of the rate applicable to the said article (i.e. tractor) when imported complete.
This concession was again subject to a certificate and recommendation from certain specified authorities, one of whom is the Directorate General of Technical Development (DGTD) The relief available to the assessee under the first notification of 1979 is, apparently, larger than the one available under the second notification of 1980.
The appellant company imported three consignments.
Each of the consignments was cleared after production of a cer tificate from the DGTD in the following terms: "Certified that M/s Auto Tractors Ltd., Luc know are holding a valid Industrial Licence for the manufacture of agricultural tractors and have an approved manufacturing programme.
It is further certified that the above compo nents of agricultural tractors, which fall under ICT No. 87.01 (1) qualify for conces sional rate of import duty in terms of Cus tom 's Notification No. 179/F No. 370/99/79CUS.
I dated 4.9.1980." (underlining ours).
284 Apparently, since the certificates of the DGTD referred only to Notification No. 179/80, the appellant was granted the concession available under the said Notification.
The appel lant cleared the goods, availing itself of the said conces sion, in March, May and June 1981.
Subsequently, the appellant appears to have realised that it was entitled to the larger concession available under Notification No. 200 of 1979 and that it had erred in clearing the goods after payment of duty subject only to the smaller concession available under Notification No. 179 of 1980.
The appellant therefore filed three refund applica tions in August, September and October 1981 claiming refund to the extent of Rs. 1,55,342.50, Rs. 1,28,350.05 and Rs.6,46,415.44, being the difference between the entitle ments on concession under the two notifications in question.
It also appears that the appellant subsequently applied to the DGTD for an amendment of the original certificates to make it clear that the goods imported by the appellant were eligible for the concession under notification No. 200 of 79.
The DGTD on such application issued a certificate to the following effect: "Certified that M/s. Auto Tractors Ltd. Pra tapgarh are holding an Industrial Licence to manufacture Agricultural Tractors and have an approved manufacturing programme.
It is fur ther certified that the items listed above are components of agricultural tractors falling under ITC No. 87.01 (1) and are eligible for concessional rate of import duty under custom notification No. 200/79 and 52/81 as extended by Custom 's notification No. 81/81 and 82/81 both dated 28.3.
This supersedes the earlier duty concession certificate issued by this office vide Notifi cation No. 179/F No. 370/ 99/79 CUS.
I dated 4.9.1980 under this office letter No. DD II/5(49)/79 Ag dated 16.1.81.
" These amended certificates were also produced before the Customs authorities.
The assessee 's prayer for refund was however rejected by the Assistant Collector of Customs on the ground that the assessee had failed to produce "end use" certificates.
The assessee 's appeals to the Collector of Customs (Appeals) also failed.
There were further appeals to the CUstoms, Excise and Gold (Control) Appellate Tribunal, which by its order dated 23.10.1987, dismissed the appeals of 285 the Appellants and hence the present appeals.
The Tribunal disposed of the assessee 's claim by a short order.
It observed that the Notification No. 200/79 entitled an assessee to the concessions therein mentioned on the fulfillment of three conditions: (i) A manufacturing programme as duly approved by the Direc tor General of Technical Development (D.G.T.D.) should be produced at the time of clearance of the goods.
(ii) The list of components and goods should be produced duly certified by the D.G.T.D.; and (iii) An End use certificate from the same Directorate to be produced in clue course in regard to the consumption of goods in the manufacture of the motor vehicles or tractors, etc.
The Tribunal proceeded to observe: "The first statutory condition of the notifi cation that the manufacturing programme of the appellants as approved by the D.G.T.D. should have been produced before the Assistant Col lector at the time of clearance of the goods was not fulfilled by the appellants.
As a matter of fact at the time of clearance of the goods there was no claim even by the appel lants under Notification Nos. 200 and 201/79Cus.
Their claim at that time was under a different notification No. 179/80 Cus.
Which contained no requirement to produce an ap proved manufacturing programme.
Since the statutory wording of the notification made it imperative for the appellants that the ap proved manufacturing programme should have been produced at the time of clearance and since this condition was not fulfilled, the entitlement of the appellants to the exemption is not accepted.
The approved manufacturing programme was available all along with the appellants yet they did not produce it at the time of clearance before the Assistant Collec tor." (underlining ours) We have heard the learned counsel for the appellant as well as learned Additional Solicitor General and we are of the opinion that 286 the Tribunal has erred in denying the appellant the benefit of the Notification No. 200 of 1979.
This notification made the availability of the concession thereunder subject to three conditions of which one alone is relevant for our purposes.
The Tribunal thought that this condition was that the approved manufacturing programme should have been pro duced at the time of clearance and it has denied the asses see the benefit of the concession, even though satisfied that the approved manufacturing programme was all along available with the assessee, because such programme was not produced at the time of the clearance.
The Tribunal has committed an error in its reading of the relevant condition of the notification.
The condition is not that the manufac turing programme should be produced but that "the importer should produce evidence to the Assistant Collector of Cus toms at the time of clearance of the components or the goods that they have a programme duly approved by the Ministry of Industry and the Industrial Adviser or Additional Industrial Adviser of the Directorate General of Technical Development of the Ministry of Industry for the manufacture of such motor vehicles . . or of tractors".
In other words, the importer had only to satisfy the customs authorities that it had an approved industrial programme for the manufacture of tractors by production of a certificate from the DGTD.
It is indeed common ground before us that the second set of cer tificates issued by the DGTD constitutes sufficient evidence that would entitle the appellant to the concession under Notification No. 20)/1979.
But the argument is that the amended certificates were produced not at the time of the clearance of the goods but only much later and that there fore the appellant is not entitled to the concession under the said notification.
There is a fallacy in this approach, for, even ignoring the subsequent amendment of the certifi cates, we are of the opinion that the production of the original set of certificates at the time of clearance of the goods was sufficient compliance with the terms of the noti fication in question.
We have extracted the terms of this certificate earlier.
It is an unequivocal certificate by the DGTD that the appellant holds a valid industrial licence for the manufacture of agricultural tractors and that it also has an approved manufacturing programme.
That is all the second set also says.
There is therefore no doubt that the assessee had produced evidence, in the form of the said certificate, of the fact that the appellant had an approved industrial programme.
This was the only requirement of the notification and this requirement has, in our opinion, been complied with.
The further words in the first set of certif icates that the assessee was eligible for the concession under 1980 notification were mere surplusage.
The omission of the assessee to request the DGTD to refer to the asses see 's entitlement under the 287 1979 notification or the omission of the DGTD to refer to the assessee 's entitlement under the 1979 notification cannot take away the assessee 's rights.
The grant of conces sion depends on a certificate that the assessee had an approved manufacturing programme which is there and not the reference therein to the notifications that can be availed of by the assessee.
We are therefore of the opinion that the order of the Tribunal should be set aside and that the assessee should be held entitled, in respect of the three consignments referred to earlier, to the concession available under Notification No. 200 of 79.
We direct ac cordingly.
The appeals are allowed but having regard to the circumstances we make no order as to costs.
P.S.S Appeals allowed.


Summary:
Customs Notification No. 200/79 dated 28.9.1979 exempts components required for the manufacture of heavy commercial motor vehicles or of tractors from customs duty in excess of 25 per cent ad valorem and whole of the additional duty leviable thereon.
Notification No. 179/ 80 dated 4.9.1980 exempts components required for the purpose of initial setting up or for the assembly or manufacture of tractors, an article falling under Heading No. 87.01(1) of the First Schedule of the Act from so much of the customs duty as is in excess of the rate applicable to the said article when imported complete.
The appellant company imported three consignments of components of agricultural tractors.
The Directorate General of Technical Development issued certificate in terms of notification No. 179/80 stating that the appellant company was holding a valid industrial licence for the manufacture of agricultural tractors and have an approved manufacturing programme.
The appellant cleared the goods availing itself of the said concession.
Having realised later that it was entitled to the larger concession available under Notifica tion No. 200 of 1979, it filed three applications in respect of the said consignments claiming refund to the extent of the difference between the entitlements to concession under the two notifications.
The DGTD issued certificates in terms of notification No. 200 of 1979 in its favour.
The Assistant Collector of Customs rejected assessee 's prayer on the ground that it had failed to produce end use certificate.
Its appeals before the Collector of Customs (Appeals) failed.
The Customs, Excise and Gold (Control) Appellate Tribunal dismissed the appeal on the ground that the appellant did not produce the approved manufacturing programme at the time of clearance of the goods as required under Notification No. 200 of 1979.
282 In these appeals it was contended for the respondents that since the amended certificates were not produced at the time of clearance but only much later the assessee was not entitled to the concession under Notification No. 200 of 1979.
Allowing the appeals, HELD: 1.
The assessee is entitled to the concession available under Notification No. 200 of 1979.
[287B C] 2.1 The grant of concession depends on production of evidence by the importer to the Assistant Collector of Customs at the time of clearance of the components or the goods that they have a programme duly approved by the Minis try of Industry and the Industrial Adviser or Additional Industrial Adviser of the Directorate General of Technical Development of the Ministry of Industry for the manufacture of such motor vehicles or of tractors and not on the refer ence in the certificates to the notifications that can be availed of by the assessee.
[286C D; 287B] 2.2 In the instant case, the assessee had produced unequivocal evidence in the form of original set of certifi cates from DGTD at the time of clearance of the goods of the fact that the appellant held a valid industrial licence for the manufacture of agricultural tractors and that it also had an approved manufacturing programme.
That was sufficient compliance with the terms of the notification in question.
The omission of the assessee to request the DGTD to refer to the assessee 's entitlement under the 1979 notification or the omission of the DGTD to refer to the assessee 's entitle ment under the 1979 notification cannot take away the asses see 's rights.
The order of the Tribunal is, therefore, set aside.
[286F H; 287A]