1. The present appeal is filed by the Department against the impugned Order-In-Appeal No. 436(DKV)CE/JPR-I/2010, dated 20-9-2010 passed by the Commissioner of Customs & Central Excise (Appeals), Jaipur. The period in dispute is May, 2007 to September, 2007. The brief facts of the case are that, during the period under consideration, the assessee-Respondents were a 100% EOU, engaged in the manufacture of Metering Panels, CT/PT Tank, Tank Fabrication, CSP Transformer etc. falling under Chapter 85 of the 1st Schedule to the Central Excise Tariff Act, 1985. As per the Letter of Permission (LoP) dated 29-3-2007, the learned Development Commissioner, Noida, permitted to covert the unit into 100% EOU for manufacture and export of aforesaid goods. Later, additional items were also added in the LoP. On 2-8-2007, the learned Development Commissioner granted advance DTA sale permission to the assessee-Respondents for sale of power & distribution transformers, vacuum circuit breaker/SFS-6, isolators, do fuse and switches for a total value of Rs. 3,00,000/-. The allegation of the Department is that, the assessee-Respondents has not informed them about the DTA sale and raised differential duty demand of Rs. 12,48,021/- along with interest and penalty. But the Commissioner (Appeals) vide the impugned order has dropped the said demand by observing that this was merely a procedural mistake. Being aggrieved, the Department has filed the present appeal.

2. With this background, we have heard Shri M.R. Sharma, learned DR for the Department and Shri Amit Jain & Shri Dhrup Tiwari, learned counsel for the assessee-Respondents.

3. After hearing both sides and on perusal of record, it appears that manufacture and sale of the DTA is not in question since it was as per the permission letter granted by the learned Development Commissioner. But the only issue involved is that the assessee-Respondents have not informed the Department well within time about the DTA sale. It may be mentioned that the Tribunal in the case of C.C.E. & C. v. J.S. Gupta & Sons : 2015 (318) E.L.T. 63 (All.), has observed that:

"39. There are condition and conditions, some may be substantive mandatory based on considerations of policy, and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve. A distinction between the provisions of statute which are of substantive character and were built in with certain specific objectives or policy on the one hand, and those which are merely procedural and technical in their nature on the other, must be kept clearly distinguished. In fact, it is now a trite law that the procedural infraction of notifications/circulars etc. are to be condoned if exports have really taken place and the law is settled now that substantive benefit cannot be denied for procedural lapses. Procedure has been prescribed to facilitate verification of substantive requirements. The core aspect or fundamental requirement for debate is its manufacture and subsequent export. As long as this requirement is met, other procedural deviations can be condoned."

4. Further, it may be mentioned that the Hon'ble Supreme Court in the case of Udai Shankar Triyar v. Ram Kalewar Prasad Singh & Anr : 2005 AIR SCW 5851, has observed that, procedure, a hand maiden to justice, should never be made a tool to deny justice or perpetuate injustice. In the in

stant case, we are of the view that the mistake was just merely a procedural one which was rectified later as observed by the Commissioner (Appeals) in the impugned order. When it is so, then we find no reason to interfere with the impugned order and the same is hereby sustained along with the reasons mentioned therein. In the result, the appeal filed by the Department is dismissed.