{"id":245332,"date":"2004-06-28T00:00:00","date_gmt":"2004-06-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-t-scan-research-centre-p-ltd-vs-commr-of-cus-icd-on-28-june-2004"},"modified":"2017-10-09T21:20:00","modified_gmt":"2017-10-09T15:50:00","slug":"c-t-scan-research-centre-p-ltd-vs-commr-of-cus-icd-on-28-june-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-t-scan-research-centre-p-ltd-vs-commr-of-cus-icd-on-28-june-2004","title":{"rendered":"C.T. Scan Research Centre (P) Ltd. vs Commr. Of Cus., Icd on 28 June, 2004"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
C.T. Scan Research Centre (P) Ltd. vs Commr. Of Cus., Icd on 28 June, 2004<\/div>\n
Equivalent citations: 2004 (97) ECC 480, 2004 (173) ELT 157 Tri Del<\/div>\n
Bench: A T V.K., M Bohra<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
V.K. Agrawal, Member (T)<\/p>\n
1. The issue involved in this appeal relates to the availability of benefit of Notification No. 64\/88-Cus., dated 1-3-1988 to the C.T. Scan Machine imported by M\/s. C.T. Scan Research Centre (P) Ltd.\n<\/p>\n
2 Shri A.K. Jain, learned Advocate, submitted that the Appellants imported one Computerised Axial Tomography Scanner and a spare C.T. X-Ray Tube and availed the benefit of Notification No. 64\/88-Cus. under Bill of Entry dated 24-7-91; that a show cause notice dated 17-9-98 was issued by the Assistant Commissioner, Customs to show cause as to why goods imported by them should not be confiscated and why penalty should not be imposed upon them under Section 112 of the Customs Act, that the Commissioner, under the impugned Order, has confiscated the impugned goods with an option to redeem the same on payment of redemption fine of Rs. 25 lakh and appropriate duty and has imposed a penalty of Rs. 2.5 lakh on the Appellants On the ground that they have not fulfilled the conditions specified in the Notification.\n<\/p>\n
3.1 The learned Advocate, further, submitted that the Notification No. 64\/88-Cus. has since been repealed vide Notification No. 99\/94-Cus., dated 1-3-94; that it has been held by the Madras High Court in the case of Apollo Hospitals Enterprises Ltd. v. Union of India, 2001 (133) E.L.T. 58 (Mad.) that it is always open to the authorities to enforce obligation only during the period when the Notification No. 64\/88-Cus. was in force and not for the subsequent period; that the said judgment has not been overruled or stayed and this being the situation, their appeal is to be allowed on the basis of the following judgments laying down that if there is only one High Court judgment on a particular point, then it is fully binding on the Tribunal:\n<\/p>\n
(i)    Sai Giridhara Supply Ltd. v. C.C.E., Bombay, 1987 (28) E.L.T. 438 (T) which has been confirmed by the Supreme Court as reported in 1997 (94) E.L.T. 14;\n \n\n(ii)   C.I.T. v. Godavaridevi Saraff, 1978 (2) E.L.T. (J624) (Bom.) = (1978) 113 TTR 589 (Bom);\n \n\n(iii)  C.I.T. v. Nirmalabai K. Darekar, (1990) 186 ITR 242;\n \n\n(iv)  Shree Gauri Fashions (P) Ltd. v. C.C.E., Stay Order<\/a> dated 7-7-2003 WZB; and\n \n\n(v)   Collector of Customs v. Mansingka Brothers, 1988 (38) E.L.T. 105 (T).\n \n\n<\/pre>\n
3.2 The learned Advocate contended that no bond was executed by the Appellants and there was no provisional assessment and as such the assessment made by the Department on Bill of Entry was final; that accordingly, the judgment of the Supreme Court in the case of Commissioner of Customs (Import) v. Jagdish Cancer & Research Centre,<\/a> 2001 (132) E.L.T. 257 (S.C.) is not applicable to the present matter inasmuch as the Bond with Bank Guarantee was executed by Jag-dish Cancer & Research Centre and rescinding of Notification No. 68\/88-Cus. was not brought to the notice of the Supreme Court and that in that case, default was from the very beginning on account of not providing the installation certificate whereas in the present matter, the period starts after 1994 and the show cause notice was issued to Jagdish Cancer under Section 28(1) of the Customs Act. He also mentioned that there is no mens rea on the part of the Appellants; that both show cause notice and the impugned Orders are silent on this aspect; that in absence of any mens rea, neither the impugned goods are liable for confiscation nor any penalties imposable on the Appellants; that Section 112(b) of the Customs Act requires existence of malafide which has not been alleged in the show cause notice; that in fact mistake was committed by the Department itself by allowing benefit of Notification No. 64\/88-Cus. and being a Diagnostic Centre, they were not being able to fulfil the conditions under Para 2 of the Table in the Notification. He relied upon the decision in the case of Akbar Badruddin Jiwani v. Collector of Customs,<\/a> 1990 (47) E.L.T. 161 (S.C.) wherein it has been held that “in imposing penalty, the requisite mens rea has to be established.” Finally, he submitted that the Order confiscating the machine is bad because the impugned machine, at the present, is working on the duty paid parts and if those parts are removed from it, its value shall only be the scrap value of its shell.\n<\/p>\n
4. Countering the arguments, Shri D.N. Choudhary, learned S.D.R., submitted that the appellants had imported impugned goods in 1991 and availed of the benefit of Notification No. 64\/88-Cus. subject to the condition that they would provide treatment free, on an average to at least 40% of all outdoor patients and free to all indoor patients belonging to families with an income of less than Rs. 500\/- p.m. and to keep for this purpose at least 10% of all the hostel beds reserved for such patients; that it is not the case of the Appellants they had fulfilled these conditions even before this Notification rescinded by Notification No. 99\/94; that the Director General of Health Services has also cancelled the certificate of eligibility issued to them; that it has been held by the Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India and Ors.,<\/a> 1997 (89) E.L.T. 425 that providing free treatment in terms of Notification is a continuing obligation; that again in the case of Jagdish Cancer & Research Centre (supra), the Supreme Court has held that “a perusal of the condition in the Notification indicates that on an average, at least 40 per cent of all outdoor patients should be provided free treatment. It is, thus, at least 40 per cent or may be above. It is submitted that condition nowhere indicates that within what period, the prescribed percentage is to be achieved….. We are not impressed by this argument. It would, not at all, be necessary to prescribe any period to achieve the given percentage of patients treated free. It should generally be all through the period. It being at least 40 per cent, there is hardly any occasion to say that in case there is more than 40% in a given period, that may make good the deficiency in the previous or the following year.” The learned D.R. also submitted that the benefit of the notification was available to the appellants subject to fulfilment of the conditions specified therein; that, therefore, non-execution of Bond will not make the conditions specified in the notification non-operative. The duty liability is fastened on the appellants under Section 125 of the Customs Act; that this was the view of the Supreme Court in the case of Jagdish Cancer & Research Centre (supra) wherein it has been held “where an order is passed for payment of customs duty along with an order of imposition of fine in lieu of confiscation of goods, it shall only be referable to Sub-section (2) of Section 125 of the Customs Act. It would not attract Section 28(1) of the Customs Act which covers the case of duty not levied, short levied or erroneously refunded, etc. The order for payment of duty under Section 125(2) of the Act would be an integral part of proceedings relating to confiscation and consequential orders thereon, on the ground as in this case that the importer had violated the conditions of Notification subject to which exemption of goods was granted without attracting the provisions of Section 28(1) of the Customs Act.” Finally, the learned S.D.R., submitted that for the purpose of determining the quantum of redemption fine, the present condition of the imported goods is not material; that it has been held by the Larger Bench of the Tribunal in the case of Omex (India) v. Collector of Customs, 1993 (67) E.L.T. 832 (T) that redemption fine claimed should be fixed on the basis of the value of the goods on the date of importation. In reply, the learned Advocate mentioned that the facts in Jagdish Cancer & Research Centre (supra) case were different as it is clear from the show cause notice issued to them that the goods were allowed to be cleared provisionally on the strength of P.O. Bond with Bank Guarantee pending production of the required certificates under Notification 64\/88-Cus.\n<\/p>\n
5. We have considered the submissions of both the sides. Notification No. 64\/88 exempts all equipments, apparatus and appliances, the import of which is approved by the Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in any hospital specified in the Table below the Notification subject to the conditions that all such hospitals, which may be certified to be run for providing medical, surgical or diagnostic treatment not only without any distinction of cast, creed, race, religion or language but also free on a average to at least 40% of all their outdoor patients and free to all indore patients belonging to the families with an income of less than Rs. 500\/- p.m. and keeping for this purpose at least 10% of the hospital beds reserved for such patients. It has not been claimed by the appellants that these conditions specified in the Notification about treating the 40% outdoor patients free and treating all indoor patients free belonging to families having income less than Rs. 500\/- p.m. have been complied by them. The main contention of the appellants is that this Notification having been rescinded by Notification No. 99\/94 – Cus, dated 1-3-94, no action can be initiated as held by the Madras High Court in the case of Apollo Hospitals Enterprises Ltd. (supra). On the other hand, the Revenue has relied upon the decision in the case of Jagdish Cancer & Research Centre (supra) wherein also the action has been initiated after the repeal of the Notification and the Supreme Court allowed the appeal filed by the Revenue holding that M\/s. Jagdish Cancer & Research Centre (supra) have failed to convince the Court that it has not failed to fulfil the conditions of the Notifications for providing free treatment to the patients as required therein. In view of this judgment of the Supreme Court, it is apparent that the action can be taken against the importers if they have violated the conditions stipulated in Notification No. 64\/88-Cus. We, therefore, follow the judgment delivered by the Apex Court of the land and hold that as the appellants have not fulfilled the conditions stipulated in the Notification, the impugned goods are liable to confiscation under the provisions of Section 111(o) of the Customs Act, 1962. There is no substance in the submissions of the appellants that they had neither executed any Bond nor the assessment was provisional. The Notification also, nowhere, provided that the importers have to execute any bond or assessments have to be made provisionally. Once the conditions of the Notifications are not fulfilled, the Revenue is competent to take action for the confiscation of the goods under Section 111(o) which provides that any goods exempted subject to any condition from duty, in respect of which the condition is not observed, is liable to confiscation. Further, penalty is also liable to be imposed on the appellants under Section 112(a) as they have omitted to do an act (complying with the conditions stipulated in the Notifications) which has rendered these goods liable for confiscation. We, therefore, uphold the confiscation of the impugned goods and the imposition of penalty. We are, however, of the view that the redemption fine imposed is on the higher side, which is reduced to Rs. 12 lakh. A penalty of Rs. 2.5 lakh is quite reasonable, which is upheld. The appeal is disposed of in the above terms.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi C.T. Scan Research Centre (P) Ltd. vs Commr. Of Cus., Icd on 28 June, 2004 Equivalent citations: 2004 (97) ECC 480, 2004 (173) ELT 157 Tri Del Bench: A T V.K., M Bohra ORDER V.K. Agrawal, Member (T) 1. The issue involved in this appeal relates to the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-245332","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nC.T. Scan Research Centre (P) Ltd. vs Commr. 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