2011 (8) TMI 345 - AT - Central Excise

Demand, interest and penalty - period from 01.03.1986 to 19.11.1987 - the appellant were charged to have not discharging of their duty liability on the product Di-calcium Phosphate on the ground that appellant did not produce certificate from the Drug Controller of India as regards the eligibility of the said product for the benefit of Notification No 234/86-CE - The conditions referred to in sub-section (1) of Section 25 as regard time when such certificate is to be produced would, thus, mean those which were within the control and power of the importer. If it is not within the power and control of the importer and depends upon the acts of other public functionaries, non-compliance of such condition, subject to just exception cannot be held to be a condition precedent which would disable it from obtaining the benefit therefrom for all times to come. - Benefit of exemption allowed.

Summary

Issues:
- Discharge of duty liability on Di-calcium Phosphate
- Requirement of certificate from Drug Controller of India for Notification No 234/86-CE benefit
- Contestation of show cause notice
- Confirmation of demand, penalties, and interest
- Compliance with conditions for exemption
- Delay in receiving certificate from Drug Controller
- Applicability of mandatory vs. directory conditions

Analysis:
The appeal was against an order dated 14.08.1991 concerning the appellant's duty liability on Di-calcium Phosphate for the period from 01.03.1986 to 19.11.1987. The appellant was accused of not discharging their duty liability due to the absence of a certificate from the Drug Controller of India for the benefit of Notification No 234/86-CE. The adjudicating authority confirmed the demand, imposed penalties, and required interest. The appellant argued that they were actively pursuing the certificate from the Drug Controller of India, which was eventually obtained on 15.02.1988. The appellant cited legal precedents to support their claim that substantial compliance with the conditions should suffice. The Drug Controller's certificate explicitly linked the issuance to the appellant's request made in December 1987.

The Appellate Tribunal acknowledged that the appellant's product was eligible for the benefit of the notification subject to the condition of producing the Drug Controller's certificate within a specified period. The certificate, received belatedly on 15.02.1988, clearly indicated its issuance in response to the appellant's request. The Tribunal noted the appellant's diligent efforts in pursuing the certificate and held that the delay caused by external factors should not deprive them of the entitled benefit. Citing the judgment of the Hon'ble Gujarat High Court and the Apex Court, the Tribunal emphasized the distinction between mandatory and directory conditions, emphasizing that substantial compliance with the latter should be sufficient.

Based on the above analysis and legal principles, the Tribunal concluded that the impugned order was unsustainable and set it aside, allowing the appeal. The delay in receiving the certificate from the Drug Controller, despite the appellant's proactive efforts, was not deemed a valid reason to deny them the benefit they were otherwise eligible for under the notification. The Tribunal's decision was made in consideration of the legal precedents and the specific circumstances of the case, emphasizing the importance of substantial compliance with regulatory requirements.