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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, BANGALORE
G.A. BRAHMA DEVA, S.S. Sekhon, JJ.
Bochasanwasi Shree Akshar Purushottam Sanstha -Appellant
Versus
Commissioner of Central Excise, Bangalore -Respondent
Final Order No. 445/2001 Appeal No. E/1890/97, 445 of 2001, 1890 of 1997
Decided On : 15-03-2001
Per S.S. Sekhon :
This appeal is filed by a voluntary N.G.O., recognised by the Government of Maharashtra, which took up the construction of houses for the victims of earthquake in Latur, Maharashtra in 1993.
2. The appellants had purchased 1288.50 MT of Cement from M/s. ACC Ltd., and got it despatched to earthquake devastated area, where it was used. They had obtained duty paid cement from the manufacturers M/s. ACC Ltd., Wadi under the jurisdiction of Asstt. Collector of Central Excise, Gulbarga. They filed a refund claim for the duty of Rs. 4,25,205/- on cement so used. There was a time lag in the issue of Notification No. 97/93 dt. 19.10.93 and its amendments No. 128/94 dt. 7.9.94 and its actual receipt by M/s. ACC Ltd. and by the appellants;
3. They applied for the refund of duty borne, suffered by them to the Assistant Collector, Gulbarga in whose jurisdiction Wadi factory is located. The Assistant Collector admitted the claim in his appeal and a S.C.N, dt. 31.03.95 was issued to the appellants as to why the refund of Rs. 4,25,205/- claimed by them should not be rejected on the ground that they are not eligible for the exemption from duty by Notification 97/93 dt. 19.10.93 as amended 128/94 dt. 7.9.94, as also the claim does not conform to the said notification.
4. The Assistant Collector, found, that the appellants do not satisfy the conditions of the notification and therefore rejected the claim. The Commissioner (Appeals) after hearing the party and considering the matter found -
"In fact both the conditions of the notification have not been complied with. The first is that no certificate, by the manufacturer that the goods are intended to be donated, has been furnished on the clearance documents. Secondly, the goods have not been sent directly from the factory but were sent from the factory to the depot i.e. at Latur Maharashtra and thereafter to the relief agency.".......
Therefore, holding these conditions to be substantive and relying upon Hansraj Gordhandas ECR C 274 (SC) and rejecting the claim of reliance of appellants on Parle Exports 1988 (38) ELT 741 (SC), he rejected the refund, vide his Order dt. 27.5.97 now in appeal before us.
5. We have heard both sides and after considering the matter find:
a) Examining the finding of the Commissioner (Appeals) on the first grounds i.e. "No certificate by the manufacturer that the goods are intended to be donated has been furnished on the clearance documents" we find this condition in the Notification 128/94 dt. 7.9.94 reads -
"that it is certified by the manufacturers of such goods on the relevant clearance documents that the goods are intended to be donated for the relief and rehabilation of the people affected by the earthquake in the said states without making any charge thereof"
A plain reading of the same, indicates to us, that such an endorsement is required to be made only when 'no charge' for the goods have been made. In the case before us, the appellant has paid for the goods i .e. Cement. This payment is for cost of' goods purchased' which are also exempted from duty by the notification, and such goods wil obviously would be charged for and the endorsement as required cannot be made in full on the manufacturers documents as stipulated in the notification. Therefore, it cannot be said that, when goods are purchased with only cash donations for relief from a manufacturer they will not be eligible for the benefit of the notification 'since the declaration on the clearance document cannot be effected in 'full measure.' Therefore, to our mind, this stipulation is procedural in aspect, can be ignored, as it is not a substantial requirement of the notification as arrived at by the Commissioner (Appeals). Such failure of procedural requirements, cannot deny the substantive benefit of exemption, if goods are used for earthquake relief as certified by the District Magistrate, who in this case has issued such a certificate. The learned Advocate has submitted before us that
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