ORDER
S.S. Sekhon, Member (T)
1. The present appeals are filed by Revenue against the order of the Commissioner (Appeals), Chennai. The issue involved in this case is whether under Customs Notification No. 176/83 dated 14-6-1983 as amended the respondents who are the importers of the items in question are entitled for the benefit of the exemption notification or not. The Notification inter alia provides that if the importer holds an industrial licence under Industrial (Development & Regulation) Act, 1951 for slitting and confectioning of photo sensitised material from jumbo rolls then benefit of the concessional rate of duty for the import of the goods mentioned in the table annexed to the notification could be granted by the Proper Officer of Customs. In this case, the imports were made and duties were paid under protest and subsequently a refund application was filed with Asst. Commissioner of Customs (Refund) Chennai, who found after going into the facts of the case and the submissions made at the personal hearing that the importers were operating under a SSI licence and were allowed to carry on business by the Ministry of Industry. Therefore, the benefit of Notification 176/83-Cus., dated 14-6-1983 was not eligible to them as the pre-condition to the exemption was that they should possess an industrial licence issued by the DGTD and in view of this finding, he rejected the claim of refund of duty of as inadmissible.
2. The Commissioner (Appeals) after considering the material, held that in terms of Notification No. SO 428 (E), dated 18-7-1996, the importers had applied for ‘carry on business’ licence on 6-10-1986 and the same was issued on 12-12-1988 for photographic colour paper and further endorsed to include amature colour roll films and also for extra capacity for slitting and confectioning of colour paper. He also relied on a subsequent notification dated 30-6-1988 of Ministry of Industry exempting certain classes of industrial undertakings from the operation of licencing control of the Industrial (Development and Regulation) Act, 1951. He also relied on the press note No. 27/1988 dated 29-9-1988 issued by the Ministry of Industry, Department of Industrial Development, Govt. of India which clarified that industrial undertakings holding a registration issued by a technical authority could not apply for ‘carry on’ business licence and the registration granted by such a technical authority will be regarded as a valid authority in respect of IDR Act, 1951. He also noted that the appellants had applied on 28-2-1991 for an industrial licence which was issued to them at a subsequent date on 22-7-1992 and therefore held that the requirement mentioned in the customs notification in question and its benefit was available to the appellants relying upon Oil India Ltd. case – 1992 (57) E.L.T. 449 (T), which in turn had relied upon Supreme Court’s decision in the case of Wood Papers Ltd. -1990 (47) E.L.T. 500 (SC) and he ordered the grant of refund in all these cases by holding the entitlement to the Notification 176/83-Cus., dated 14-6-1983 in the facts and circumstances of the case.
3. The Revenue has filed these appeals on the following grounds :-
(a) Notification No. 176/83-Cus., dated 14-6-1983 provides no scope for liberal interpretation of the notification as applied and relied upon by the Commissioner (Appeals) and non-compliance in one of the two conditions would make the imports ineligible for the benefit of the notification.
(b) The argument of the importers that they are holders of the permanent SSI registration and had applied for COB licence on 28-2-1991 will not alter the basic fact that they did not possess a licence under IDR Act. (c) The case-law of M/s. Oil India Ltd. -1992 (57) E.L.T. 449 relied by the Commissioner (Appeals) is not applicable since in the present case an Essentiality Certificate was issued subsequent to the clearance of the goods.
4. We have heard ld. SDR Shri G. Sreekumar Menon for the Revenue and ld. Advocates Shri R. Raghvan and Shri T.S. Balasubramanian for the respondents who reiterated the grounds in appeal and the findings of the Commissioner (Appeals) respectively and took us through the provisions of the IDR Act. After considering the submissions made and the material, we find-
(a) the ‘COB’ licence as per the commentary on IDR Act, 1951 is also a type of industrial licence required and issued under IDR Act under Section 82C of Section 13(1) of the said Act. We find that an application for a COB licence was made by the respondents as far back as 6-10-1986 which has been granted to them and subsequent amendments have also been made to incorporate other items and extra capacity. We also find that a regular industrial licence has been granted to them on 27-7-1992 for a regular application made by them on 6-3-1991.
(b) We find from the reading of the notification that the clause in the notification reads as –
“(b) the importer holds an industrial licence under the Industrial (Development and Regulation) Act, 1951 (65 of 1951) for slitting and confectioning of photo-sensitised materials from jumbo rolls.”
This clause does not provide for a specific type or kind of licences which is required under the IDR Act. The Taxmann’s Commentary on Industrial Licensing and IDR Act by A.M. Chakraborti – 8th Edition, 1986 (Page 2.2), classifies the types of industrial licences :-
“Types of industrial licences
2.1.3 Industrial licence is required under the Act for –
(a) Establishment of a new undertaking (Section 11); (b) Manufacture of a 'new articles' in an 'existing industrial undertaking' (Section 11 A); (c) 'COB' or carrying on business of an industrial undertaking [Clauses (a) to (c) of section 13(1)]; (d) Effecting substantial expansion of an 'existing industrial undertaking' [Clause (d) of Section 13(1)]; (e) Change in the location of the whole or part of an industrial undertaking [Clause (e) of Section 13(1)]; and (f) Carrying on business consequent upon the withdrawal of exemptions [section 29B (2B)],"
Therefore, we find that in the facts of this case, respondents had applied and are possessing a ‘COB licence’ covered under Section 13(1) of the IDR Act as submitted by the respondents. The same should have been considered by the refund sanctioning authority to be applicable under the notification. Since this has not been done, the matter requires to be remanded back to the concerned authority before whom this licence should be produced in original for his consideration and a finding should be arrived at by the concerned authority whether that licence would entitle the eligibility of the notification or not. Since there is no finding on this issue which goes to the root of the eligibility of the notification, we would find that the matter is required to be remanded back to the original authority to give a finding on this aspect.
(c) While we have come to a finding that the matter is required to be re-decided by the original authority as to whether the notification would be available to a COB licence holder under IDR Act Section 13 (1) and whether in the facts of this case, the respondents are possessing such a licence, we would refrain from giving any other finding on the other issues raised by the respondents in this case including the issue of unjust enrichment made across the bar by the ld. SDR which we find has not been determined and decided in terms of Mafatlal Industries 1997 (89) E.L.T. 247 (S.C.) case of the Constitutional Bench of the Govt. of India and or Solar Pesticides [2000 (116) E.L.T. 401 (SC)] case subsequently by the Supreme Court. We find from the grounds taken in appeals mat this point has not been urged and the grounds made being a legal submission can be considered and when we are directing the matter to be remanded for de novo consideration, this legal point can be taken into consideration.
(d) We make it clear that respondents are entitled to submit any fresh material they may like to make out their case regarding the eligibility of the benefit of the notification and or material as regards unjust enrichment which they may like to present. 5. In view of our findings, the 32 appeals are disposed of by remand for de novo adjudication in the above terms.