Judgment:
1. The above appeal arises out of the order passed by the Collector of Customs (Appeals), Bombay upholding the order of the adjudicating authority, who rejected the refund claim filed by the appellants for refund of duty paid on dish washing machine imported by them and cleared on payment of duty, on the ground that in terms of Notification No. 6/86, the certificate from the Joint Secretary, Department of Tourism had to be produced at the time of clearance of the goods and production of certificate at the subsequent stage is not permissible.
2. We have heard Shri R. Parthasarthy, learned counsel and Shri K.K.Jha, learned SDR and considered the rival submissions.
3. The claim for refund of duty is on the ground that the goods are covered by Notification No. 6/86, dated 2-1-1986 which extends the concessional rate of duty to certain specific goods when imported into India, subject to the following conditions : (i) the importer, at the time of clearance produces a certificate from an officer not lower in rank than a Joint Secretary to the Government of India in the Department of Tourism to the effect that the goods imported are required for initial setting up of a hotel or for substantial expansion of a hotel, duly approved by that Department; and (ii) the importer produces evidence to the satisfaction of the Assistant Collector of Customs within two years from the date of importation or within such extended period as the Assistant Collector of Customs may allow, to the effect that the goods have been actually used for the purpose specified in (i) above.
In the Table annexed to the notification under the category 'Kitchen Equipments', dish washing machine figures at Sr. No. 34. The appellants had applied before clearance to the Tourism Department for necessary certificate in terms of condition (a) of the above notification.
However, the certificate was issued only after the goods have been cleared. In a series of cases in similar situations where the notification prescribes production of a certificate, the Tribunal has taken a lenient view and held that the production of a certificate subsequent to the clearance cannot be a ground to deny the benefit of the notification if other conditions are satisfied and the appellants have been able to satisfactorily explain that they had applied for the certificate even before the clearance of the goods but due to circumstances beyond their control, it was not available at the time of the clearance of the goods. In this case, we apply the same logic and take a lenient view in this case also and hold that the appellants shall be liable to the benefit of the above mentioned notification subject to fulfilment of condition (b) thereto to the satisfaction of the Assistant Collector. The appeal is disposed of in the above terms.
4. It is observed that in this case, the imported item has been described as 'Kitchen Equipment' for expansion project of Palm Grove Hotel and a certificate from the Department of Tourism, Government of India has been filed subsequent to the clearance.
5. Learned DR has emphasised that the certificate issued after clearance of the goods cannot be accepted and the Collector (Appeals) has mentioned that "appellants have neither submitted a copy of the so called certificate issued by J.S., Department of Tourism nor they have stated the date on which they have applied before the certificate issuing authority for issue of the certificate." In this respect, it is seen that the appellants have produced copy of a certificate issued by the Chairman, HRACC and dated 29-7-1986 which indicates that it is in respect of the items imported for the substantive expansion of the Palm Grove Hotel approved by the Department of Tourism at the project stage and mentions a number of import licences and dates and CIF values which shows that it is good only for the importation under the specified licence(s) upto the indicated CIF value(s). Further, it does not indicate the description of equipment covered by these licences. But, since it was not produced before the lower authorities, it was for them to see all the relevant aspects and how far it was in order, with reference, inter alia, to the documents filed at the time of the clearance or thereafter. Again, the letter dated 29-7-1986 of the Department of Tourism by Directorate, HRACC merely indicates that the Chairman of HRACC was of the rank of the Joint Secretary to the Government of India. It shows the subject as 'Kitchen Equipment' but confines itself to certifying the status of the Chairman. The letter dated October 27,1983 refers to the proposed expansion of the Hotel and approval for the adding of additional 48 rooms and a sun-deck with snackbar facilities and a modern health club subject to conditions and also indicates that the permission is valid for, two years but the item has been imported in January, 1986. However, the Bill of Entry shows the import licence No. P/P/0490131/C/XX/ 95/H/84/MIS, dated 11-4-1985 and the letter of office of the Chief Controller of Imports and Exports dated 19-8-1985 also refers to the licence No. as P/P/0490131, dated 11-4-1985 showing the description as "one Electrolux D-48 Dish Washing Machine with one Spray Unit Coassorted Dish Washing Racks and One Lot Essential Spares." The notification No. 6/86, dated 2-1-1986 includes 'Dish Washing Machine' but prescribes as one of the conditions not merely a certificate from the Joint Secretary in the Department of Tourism but also evidence of actual use for the intended purpose within two years or such extended period as A.C. may allow. The copy of the notification which is produced is dated 2-1-1986; And, the authorities below have the authority and discretion to satisfy themselves that the conditions of this notification are duly fulfilled.
6. We also take note of their letter dated 1-2-1986 addressed to D.G., Tourism; And, in view of the catena of Tribunal's orders in which relevant certificates which were otherwise valid and covered the items and periods were allowed to be taken into consideration even if they were produced subsequent to the clearance, the matter is remanded to the Assistant Collector for de novo consideration in the light of above observations and findings.