Customs, Excise and Gold Tribunal - Tamil Nadu
Commr. Of Cus. vs Indian Mri Diagnostic And Research ... on 26 September, 2005
ORDER P.G. Chacko, Member (J)
1. This appeal filed by the department is against an order of the Commissioner of Customs, against which the respondents had filed Appeal No. C/1250/98 which was disposed of by this Bench as per Final Order No. 763/2003, dated 5-8-2003 .
2. In the impugned order, learned Commissioner of Customs had confiscated "Whole Body CT Scanner" imported by the respondents, with option for redemption against payment of a fine of Rs. 23,61,039/-. He, however, refrained from imposing any penalty on the party, "considering the peculiar circumstances of the case and the fact that the party did give some free treatment to patients". In the aforesaid final order, we upheld the confiscation along with the quantum of redemption fine. The present appeal of the Revenue is against the non-imposition of penalty by the Commissioner.
3. Heard both sides. Ld. SDR, reiterating the grounds of the appeal, submitted that, where it was found that the assessee had, by their post-importation conduct, rendered the goods liable to confiscation under Section 111 of the Customs Act, they ought to have been penalised under Section 112 of the Act. The so-called "peculiar circumstances of the case" were not spelt out in the impugned order. That the party had given some free treatment to patients was not enough to exonerate them from penal liability under Section 112. Ld. Counsel for the respondents endeavoured to justify the Commissioner's decision as regards the proposal for imposing penalty.
4. After giving careful consideration to the submissions, we find that the respondents were found to have committed breach of the post-importation conditions of Notification 64/88-Cus. in relation to the CT Scanner imported by them and, consequently, the Customs Duty Exemption Certificate (CDEC) issued by the Director-General of Health Services (DGHS) was withdrawn by that authority. The Commissioner, further, found that the institution in which the machine was used was only a 'diagnostic centre' and not a "hospital" for purposes of the above Notification. These findings were upheld by this Bench in Final Order No. 763/2003 ibid, which has now become final. Thus the culpable conduct of the respondents, which rendered the goods liable for confiscation, is an established fact. Nevertheless, Id. Commissioner chose not to impose any penalty on the assessee, having regard to the "peculiar circumstances of the case" and to the fact that they had given some free treatment to patients. As rightly pointed out by Id. SDR, none of the so-called "peculiar circumstances" was stated in the impugned order. We also find that the factum of the respondents having given some free treatment to some patients is not a relevant consideration under Section 112 of the Customs Act. Under this provision of law, a penalty is liable to be imposed on a person who, by his omission or commission, has rendered any imported goods liable for confiscation under Section 111. The respondents have been found to have so rendered the goods liable for confiscation. Hence a penalty was invariably to be imposed on them. Considering the totality of the facts and circumstances of the case, we impose a penalty of Rs. 1,00,000/- (Rupees One lakh only) on them. The Revenue's appeal stands allowed.
(Operative part of the order was pronounced in open Court on 26-9-2005)