(a) within one month of the date of clearance of such air-conditioners by the manufacturer, after payment of duty, or such extended period as the Collector of Central Excise may allow, that the air-conditioners are actually used in such establishment and, in default, to pay the portion of the duty which is exempt under this notification; and

(b) the air-conditioners shall not be resold within a period of five years from the date the air-conditioners are installed in such establishment, and in the event of breach of any of the terms of the undertaking aforesaid, he shall pay, on behalf of the manufacturer, the portion of the duty which is exempt under this notification, and

(iii) the procedure specified in Chapter X of the Central Excise Rules, 1944, is followed."

3. The dispute has arisen in this case about satisfying the proper officer of Central Excise within one month from the date of clearance of the Air Conditioners that the air conditioners are actually used in the hospital. When the case was heard by a Division Bench, the learned Judicial Member was of the opinion that the requirement of the notification has been substantively complied as the air conditioners had been installed within the stipulated period and the delay in intimating the department and procedural requirements are not sufficient for denying the benefit of the notification. The learned Vice President also agreed with the Judicial Member that this is a case in which there has been substantive compliance by the appellants with the conditions of the notification and the delay in intimating the department is condonable and is not, in any case, such which may be fatal to their claim for benefit of Notification 56/78. However, in view of the decision of the Tribunal in the case of Jyoti Ltd. Vs. Collector of Customs, Baroda (Final Order No. 81/96-B dated 26/2/96) and the rulings of the Supreme Court in Thermax Pvt. Ltd. Vs. Collector of Customs reported in 1992 (61) ELT 352, he felt that the issue may be referred to a Larger Bench. Therefore, the matter was placed before a Third Member. The learned Judicial Member who heard the difference of opinion favoured referring the issue to a Larger Bench in the light of the Supreme Court's decision in Novopan India Ltd. Vs. Collector of the Central Excise and Customs, Hyderabad reported in 1994 (4) RLT 323 (SC).=1994 (73) ELT 769 (SC). The reference has come to this Larger Bench in view of the majority opinion.

4. When the issue came up for hearing on 6/3/2000, the counsel appearing for the appellants submitted that as the case related to very old period, the appellants are not able to locate the relevant papers and therefore, requested for adjournment of the case. The counsel also produced a copy of appellants' letter dated 21/2/2000 seeking adjournment on the said ground. Since the hearing before the Larger Bench had