Full Judgment
2. The appellants have also filed an application under Rule 23 of the C.E.G.A.T. (Procedure) Rules, 1982 requesting for the grant of permission for the admission of the additional evidence at the appellate stage. Particulars of additional evidence filed by the appellants are reproduced below :- 3. Shri N.C. Sogani, the learned consultant, who has appeared on behalf of the appellants has stated that the essentiality certificate was very much in existence at the time of the importation of the goods, but the same could not be filed due to some administrative difficulties and the appellants were under the honest belief that only consumption certificates were to be furnished for claiming the benefit of Notification No. 179/80-Cus., dated 4-9-1980 and the essentiality certificates could not be linked up with the files. He stated that these were very much in existence at the time of importation. Regarding consumption certificates, Shri Sogani stated that there was some delay in getting the consumption certificate from the concerned plants and as such, the same could not be produced at the time of claiming of the refund. He further stated that consumption certificate is always to be filed after the importation of the goods. Shri Sogani further stated that the appellants were prevented by sufficient cause in the late submission of the certificates before the Tribunal for the first time and requested that the Tribunal may exercise its discretion and admit these documents on record.
4. Shri C.V. Durghayya, the learned JDR who has appeared on behalf of the respondent stated that he has got no objection to the admission of these documents in view of the earlier judgment of the Tribunal in the case of B.H.E.L. in Order No. 465-469/88-B2, dated 21-10-1988 but he stated that in case the Bench admits these documents, the genuineness of these documents, and also the existence of the essentiality certificate at the time of importation of the goods has to be ascertained and the matter will have to be remanded to the adjudicating authority for ascertaining correctness of the stand taken by the appellants and he leaves it to the Bench.
5. After hearing both the sides and going through the facts and circumstances of the case, we are satisfied that the appellants were prevented by sufficient cause for not submitting the documents at the earlier stage and we admit the additional evidence so mentioned above and place the same on record. Shri N.C. Sogani, the learned consultant argued on merits of the matters and stated that in terms of Notification No. 179/80-Cus., dated 4-9-1980, the appellants are entitled to the benefit of notification and the additional evidence filed by them in the above captioned 22 cases and in 6 cases, where the evidence was already on record, the same may be considered and also stated that this Notification No. 179/80-Cus., was also subsequently amended by various notifications, but the conditions of the notifications were the same and as such, the appellants are entitled to the benefit of the said notification. He pleads that the Tribunal should grant the benefit of notification to the appellant in view of the earlier order of the Tribunal in the case of B.H.E.L. (Order No.465-469/88-B2, dated 21-10-1988). Alternatively, he pleaded that the matter may be remanded to the Assistant Collector for de novo examination in accordance with law, only to the extent for examining the existence of the essentiality certificate at the time of importation.
6. Shri C.V. Durghayya, the learned JDR on merits argued that before the benefit of Notification No. 179/80-Cus., dated 4-9-1980, as amended from time to time, can be extended, the department has to satisfy as to the existence of the essentiality certificate at the time of the importation.
7. We have heard both sides and have gone through the facts-and circumstances of the case. In para 5 above, we have admitted the additional omslefiee filed by the appellants. We are of the view that before any benefit of the exemption notification has to be extended, it has to be satisfied whether the essentiality certificate was in existence at the time of the importation of the goods. Hon'ble Supreme Court in the case of Auto Tractors Ltd. v. Collector of Customs, reported in 1989 (39) E.L.T. 494 had held that there was exemption under Notification No. 200/79-Cus., subject to the condition of producing a manufacturing programme as approved by the D.G.T.D., but a certificate from the D.G.T.D. regarding approved manufacturing programme produced to avail an exemption under Notification No.179/80-Cus., - Subsequent refund claiming benefit of Notification No.200/79-Cus., valid D.G.T.D. certificate produced for Notification No.179/80 also valid for Notification No. 200/79-Cus. - Reference to Notification No. 179/80-Cus., in D.G.T.D. certificate mere surplusage - Tractors part and components thereof -Chapter 87 of the Customs Tariff.
8. In the matters before us, there is no evidence on record which can satisfy us as to the genuineness of the certificates. Shri Durghayya, the learned JDR during the course of arguments had also pleaded before us that in case the Bench admits this evidence, the existence and genuineness of the same has to be verified. We accept the contention of the learned JDR in this regard. The Tribunal in the earlier Order No.465-469/88-B2, dated 21-10-1988 in the case of B.H.E.L. v. Collector of Customs, Bombay had held that non-production of the essentiality certificate becomes only forgivable procedural failure and not an insurmountable lapse. Therefore, we feel that it would not be fair and just to reject the certificate as law did not prescribe such rejection.
9. In view of the above discussion, we set aside the impugned orders and remand the matters to the Assistant Collector having jurisdiction with a direction to satisfy himself as to the existence of the essentiality certificate the time of the importation of the goods. If necessary, he may examine the relevant records where there are entries as to the issue of these certificates from the concerned authorities.
We further direct that he will also satisfy as to the genuineness of the essentiality certificate as well as the consumption certificate. We also direct that the adjudicating authority will observe principles of natural justice and also afford opportunity of personal hearing in all the above captioned 28 appeals. For statistical purposes, the appeals are allowed by way of remand.