ORDER
S.S. Sekhon, Member (T)
1. Heard both sides the appellants are well-known hoteliers under the EPCG schemes which imported a consignment of Insulation Glasses and Aluminium Window Frames and filed Bill of Entry No. 11502 dated 27.12.96 seeking the clearance under EPCG licence the goods were claimed to be exempted under the benefit of notification 110/95 as ‘Capital Grinds’ for use in there premises (Hotels) for rendering hospitality services clearance was allowed provisionally on final assessment the less charge demand. The duty demand was issued to lower authority held that the goods are material required for construction of Building and are not in nature of capital goods as per the notification 110/95-cus dated 5.6.95 therefore, the concession of duty was not available.
2. The Commissioner (Appeals) after hearing the appellants purchase manager came to a conclusion after examining EPCG scheme Notification No. 160/92, 161/92, 307/92, 103/92, 122/93, 123/93, 110/95, 111/95 and 130/95 covering the imports of capital goods under EPCG schemes concluded that in view of the definition under the Exim Policy and in absence of specific definition as to what constitutes ‘capital goods for rendering services’ under Notification No. 110/95 and hence the capital goods i.e. (capital equipment) mentioned in the notification No. 122/93 for hotel industries should alone constitute as capital goods, which would be allowed for rendering the services by a hotel industry and therefore notification 122/93 as amended for 110/95 also, the conditions are not fulfilled, the particular hotel industry and if hotel industry desires to go under any other notification goods covered under notification No. 122/93 only and on a careful reading of the said notification unless there is a specific mention of the product for exemption the goods cannot be allowed the benefit of generic description and the intention of the Government of India/CBEC is specifically clear under notification 29/97, amended by 60/98-Cus and by this amendment, the scope of notification No. 29/97 has been extended by additional Clause (c) specifically covering hotel industry and referring to plant, machinery equipment and accessories required for rendering services as specified in the annexure to the said notification 29/97 which is more or less effect to notification 122/93, therefore the capital goods definition including the goods since under notification No. 110/95 does not cover goods under dispute and therefore concluded that the appeal was not mentioned.
3 After considering the submission made we find:
(a) Licence under EPCG scheme has been granted to the appellant, which was issued under relevant policy and the appellant is not and application ‘Service’ to the extended four times of the values of capital goods for which import licence was granted. It would therefore appeared that the appropriate authority to conduct and implement the EPCG scheme was satisfy that the type of goods permitted for imports would be capital equipment required to service we set the scheme.
(b) Other condition of notification 110/95 to the fact that the goods would be unassembled condition as recognized by DGFT for ‘pollution control’ and conserve the electric energy and procedural required of etc. are met the main objection of the lower authority is that notification 110/95 did not specifically mention the item required for rendering service under hotel industry hence relying on notification No. 122/93 as amended by 29/97 as amended by 60/98 he came to the conclusion to deny the benefit.
(c) from the cattle of the product is described as Double Glazed list units consisting of:
two glass units with a 12 mm gap in between whereby on the inner glass by a sealant that keeps the air totally dry and becomes an insulating glass unit around 20 mm thick that keeps out noise, heat and dust, and yet absolutely transparent.
The glass panels are set in frames and constitute a complete unit that can be attached or mounted or fixed on the walls like any other machinery, equipment including those specifically listed in the table to the Ntfn. 122/93. These units provide service to the tourists by making their stay in the hotel comfortable by keeping out dust, street noise, infected and polluted outside air etc. In other words, these units help providing anti-pollution environment that is tourist friendly for which they are prepared to pay high tariff. These units cannot be equated with ordinary glass and tinted windows nor would the subject units be available as such for the same price in the market.
This would indicated the product would be serve & not only conserve the electrical energy but keep out the noise, dust, dirt and would also providing pollution free environment; the condition of the notification is therefore satisfied. One cannot incorporate conditions of another notification and scrap and deny the benefit as the notification specifically 122/93 to be the relevant the scope of service which the product under merits are required to provided such benefit. Once the subject goods classify the notification as well as they are specifically mentioned in the EPCG licence granted by the authority constituted to implement the EPCG scheme the Benefit of the notification issued under the Customs Act to implement the scheme of the Government of India VIZ EPCG Scheme would have to be read harmoniously & on the benefits allowed. A notification under Section 25 of the Customs Act has two stipulations. The first stipulation is the satisfaction of the Central Government for the need to exempt and the second one is ministerial in nature i.e. of the effectual issue of a notification. Once the authority constituted under the Central Government is satisfied and a licence is granted to import an item under the said notification then the Customs Authority should implement the said notification as a ministerial function; if the Customs officers have a doubt to eligibility then, they should first take up the issue with the concerned Central Government Authority, who had granted Import Licence and get the licence cancelled ab initio for void and thereafter deny the benefit of the notification. it is well settled the Customs Authority cannot said any judgment licence granted by the appropriate authority.
4. In this view, that we have arrived at, we would find no reason not to grant EPCG benefit for imports of the subject goods made, in this case, as the goods are covered under EPCG licence & licenced invalid.
5. In this view we set aside the order impugned and allowed the appeal.
(Pronounced in Court)