AIRPORT AUTHORITY OF INDIA Vs. CC

JUDGEMENT

(1.) THE issue involved in this appeal, file by M/s. Airport Authority of India relates to refund of Customs duty claimed by them.

(2.) SHRI D.N. Mehta, learned Advocate, mentioned that the Appellants has imported 4 Aerobridges for modernization of Airport in April, 2002; that as the Appellants were not aware of the Notification No. -Cus, dated 1.3.2002 providing partial exemption from payment of duty in respect of the goods imported by them, they cleared the goods without availing the benefit of the Notification; that Serial No. 232 of the Notification provides partial exemption subject to the condition that the importer, at the time of importation, produces to the Deputy/Assistant Commissioner, a certificate from an officers not below that rank of a Deputy Secretary to the Government of India in the Ministry of Civil Aviation, to the effect that the imported goods are required for the development of Airport in India and that the importer, at the time of clearance, produces a certificate from the Chairman, Airport Authority of India duly countersigned by an officer not below the rank of a Joint Secretary in the Ministry of Civil Aviation that the navigational Communication air traffic control and landing equipment and spare for maintenance of such equipments are required to be used for modernization of airport facilities and recommends the grant of exemption to the said goods. The learned Advocate, further, mentioned that the Appellants came to know about the Notification only on 17.6.2002 and they fulfilled the condition mentioned in the Notification; that the refund claim filed by them has been rejected by the lower authorities on the ground that they have dis -entitled themselves to the benefit of Notification on account of their failure to produce the requisite "Essentiality Certificate" from competent authority, at the time of clearance of the goods as the same had been produced subsequently with the refund application. The learned Advocate submitted that the condition laid down in the Notification is only procedural and not mandatory; that when there has been substantial compliance with the conditions laid down in the Notification, any procedural deficiency should not stand in the way of the relief, which is otherwise admissible to the Appellants. He relied upon the judgment in the case of Mangalore Fertilizers & Chemicals v. Deputy Commissioner, : 1991 (55) ELT 437 (SC) wherein it has been held that there are conditions and conditions. Some may be substantive, mandatory and based on consideration of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non -observance of all conditions irrespective of the purpose they were intended to serve." Reliance has also been placed on the following decisions :

(3.) IN reply, the learned Advocate submitted that the question of filing of filing the appeal against assessment made on Bill of Entry did not arises the same was correct; that when the Appellants came to know about the exemption available to the goods imported by them, they had filed the claim for refund of duty paid in excess by them; that the benefit of exemption notification can be claimed at any time.