1. This appeal relates to an importation of glass frit, along with other goods, by the appellants for the manufacture of specified electronic goods. Under notification No. 116/80-Cus. dated 19-6-1980, such goods are eligible to a concessional rate of duty when imported for the manufacture of the specified electronic goods. The notification includes a condition that the importer shall execute a bond binding himself to pay the difference between the concessional rate and the normal rate of duty on goods which are/not proved to the satisfaction of the Assistant Collector to have been used for the specified purpose.
2. The appellants did not claim the concession at the time of importation but paid the normal rate of duty. Thereafter they filed a claim for refund. The Assistant Collector rejected their claim on the ground that no bond in terms of the notification had been executed. On appeal, the Appellate Collector upheld the order of the Assistant Collector.
3. Appearing before us for the appellants, Shri Sogani stated that the appellants had duly used the glass frit for the manufacture of the specified electronic goods. He produced before us a photocopy of a certificate to this effect issued by the Superintendent of Central Excise. In reply to a query, he stated that this certificate was not available in time for submission to the Assistant Collector but was submitted to the Appellate Collector. It was, however, not accepted by him nor referred to in his order.
4. Shri Sogani submitted that the lower authorities were wrong in rejecting the appellants' claim on the ground that they did not execute a bond at the time of importation. He submitted that since they had paid the normal duty at the time of importation, there was no need for any bond to be executed, and that they- had done all that was required of them by producing the end-use certificate. In support of his submission that a bond was not necessary in such circumstances, Shri Sogani cited the following decisions :- (i) Judgment of the Madras High Court in the case of L.M. Yen Moppes Diamond Tools India Ltd. (1981 E.L.T. 165); (ii) Judgment of the Bombay High Court in the case of Mahindra and Mahindra Ltd. 1983 ELT 904 (Bom.; and (iii) Decision of the Tribunal in its order No. B20/83 dated 7-2-83 in the case of BHEL.
Shri Sogani submitted that these decisions squarely applied to the present case and that accordingly their appeal should be allowed.
5. For the Department, Shri Ohri submitted that under the notification a bond had to be executed. He also submitted that at the time the bill of entry was filed and assessment made, no claim had been made for the benefit of notification No. 116/80. So far as this point is concerned, it was pointed out to him that if the appellants were entitled to the lower rate of duty and made their claim within time, the refund could not be denied in the absence of a specific provision to the contrary.
It was also pointed out to him that the decisions cited by Shri Sogani appeared to apply squarely to the present case and he was asked whether he could distinguish the present case from those covered by those decisions. Shri Ohri could not make such a distinction.
6. In the circumstances, we consider that the appellants were entitled to have their claim examined on its merits, provided the Assistant Collector was satisfied about the end-use of the goods with reference to the certificate which has now been produced. The fact that they did not execute a bond at the time of importation should not stand in the way of their claim. We accordingly allow the appeal, and order that the appellants shall be granted consequential relief, subject however to the condition that the Assistant Collector is satisfied with reference to the end-use certificate now produced that the goods have been used in the manufacture of the goods specified against S.No. 1 of notification No. 116/80 dated 19-6-1980.