ORDER
Harish Chander, Member (J)
1. The Collector of Customs, Bangalore has filed the above captioned 5 appeals being aggrieved from the order passed by the Collector of Customs (Appeals), Madras. Since the issue involved is similar all the above 5 captioned appeals are disposed of by a consolidated order. Briefly, the facts of the case are that the respondents, M/s. Hindustan Aeronautics Ltd., had filed 5 refund claims and the refund was on the ground that oxygen regulators, oxygen cylinders and hose L.P. imported by the respondents were aircraft parts and were entitled to the benefit of Notification No. 206/76-Cus dated 2nd August, 1976. The learned Assistant Collector had rejected the refund claims of the respondents on the ground that oxygen cylinders, oxygen regulators and hose L.P. were not aircraft parts and they were not entitled to the Notification of 206/76-Cus and had rejected the refund claims. Being aggrieved from the aforesaid order the respondents had filed an appeal before the Collector (Appeals) and before Collector (Appeals) the respondents had contended that oxygen cylinders are part of the system of the Helicopters and they had produced an extract from flight manual of Cheetah Helicopters showing the location of oxygen system and confirming that installation of such system enables high altitude flying. The respondents had also submitted that these are necessary for flying at altitudes of 10,000 feet or above during day time and 4,000 feet during the night time. The learned Collector (Appeals) had accepted the contention of the respondents and had held that the goods in dispute were non-interchangeable equipments for permanent fitment of military aircraft and alternatively the same could also be treated as military stores falling under Customs Notification No. 206/76. Being aggrieved from the aforesaid orders the revenue has come in appeal before the Tribunal.
2. Shri C. V.Durghayya, the learned JDR has appeared on behalf of the appellant. He has reiterated the contentions made in the appeal memo and has relied on the order passed by the Assistant Collector. Shri Durghayya, the learned JDR has pleaded thai oxygen cylinders, oxygen regulators and hose L.P. are not essential parts of the aircraft and there is no evidence on record to the effect that these are purchased on behalf of the Government of India, Ministry of Defence and in case the appellant’s appeal is not accepted, the learned JDR pleaded for remand of the matter to the Assistant Collector for de novo examination.
3. Shri L. Ramamirthan, Dy. General Manager (Finance) has appeared on behalf of the respondents. He has relied on the order passed by the Collector of Customs (Appeals) and has also filed a photocopy of the technical opinion of Dr. R.K. Gupta, Dy. General Manager (Design), which was filed before the Collector (Appeals) and it is mentioned that there part No. 315A-73-01-100 and it is mentioned there that the system configuration and its construction are specific to Helicopter usage are of baro-anemometric type which sense operation below 3000 metres. He has pleaded for the rejection of the appeals.
4. We have heard both the sides and have gone through the facts and circumstances of the case. We have also persued the photocopy of the installation oxygene aveo sieges baquets seat for the part No. SA 315 Lama, Technical opinion of Dr. R.K. Gupta which is reproduced below: –
“The oxygen system as used on Cheetah Helicopter consists of oxygen cylinders, hoses, regulators and oxygen masks. The system is designed and manufactured specifically according to the aeronautical standard, “service Technique De 1″ Aeronautique” and is approved by the Government inspection agencies (French VERITAS, SIAR; Indian – DTD & P (Air), DGCA).
The system configuration and its construction are specific to Helicopters usage, e.g. regulators are of baro-anemometric type which sense Helicopter altitude for proper function and do not permit operation below 3000 m.
In view of the above configuration of the oxygen system which is embedded in the airframe of the Helicopter, this cannot be used elsewhere as it is designed for use in Helicopters flying at altitudes above 3000 m. only.”
We have also persued the Notification No. 206/76. In terms of Si. No. 1 aircraft parts, aircraft engines and aircraft engine parts are exempted from duty as well as additional duty and military stores are at Si. No. 4 are also exempted from duty. The goods imported by the respondents definitely fall under military stores and the same are duly covered by the Notification at SI. No. 4. The Hon’ble Supreme Court in the case of Auto Tractors Ltd. v. Collector of Customs (Appeals) reported in 1989 (39) E.L. T. 494 (S.C.) had held that where an importer has claimed the benefit of notification under a particular notification and subsequently he makes a claim the same has to be extended. In the matter before us the only difference is that the respondents had claimed benefit of notification of SI. No. 1 of Notification No.206/76-Cus whereas the Collector (Appeals) had granted the benefit of SI. No. 4 of Notification No. 206/76-Cus. We are fully satisfied that the imported items are fully covered by the SI. No. 4, military stores, accordingly we do not find any merits in the appellants appeals. The same are dismissed.
Before we part, we would like to observe while granting refund to the respondents and Assistant Collector should satisfy himself that the respondents were in possession of proper duty exemption certificate issued by the Defence Ministry in favour of the respondents.
C/Stay/1737-1738/89-B2 In A.No. C/2110-2111/89-B2 And A. No. C/2110-2111/89-B2
At the outset of hearing Shri L. Ramamirthan, Dy. General Manager (Finance) has pleaded that two Stay Applications Nos. C/Stay/1737-1738/89-B2 arising out of Appeal Nos. C/2110-2111/89-B2 are listed for hearing on 4th October, 1989 and the same may also be taken up for hearing today. Shri C.V. Durghayya, the learned JDR has got no objection to the request of Sh. L. Ramamirthan, Dy. General Manager (Finance) and requests that first the stay applications be taken up for hearing. We heard Shri Durghayya, the learned JDR and Shri L.Ramamirthan, Dy. General Manager (Finance). Shri L. Ramamirthan has pleaded for the rejection of the stay applications. After hearing both the sides and keeping in view the earlier judgments of the Tribunal in a similar type of stay applications we do not find any merits in the stay applications. The same are rejected. Now we proceed to decide the appeals on merits.
For the detailed reasons given in para No. 4 above in Appeal Nos. C/329/88-B2, C/393/88-B2, C/394/88-B2, C/1855/88-B2 and C/1856/88-B2 we do not find any merit in these two appeals, the same are dismissed.
In the result the above captioned two stay applications and seven appeals are dismissed.