Custom, Excise & Service Tax Tribunal
Rashtra Sant Tukdoji Cancer Hospital & ... vs Commissioner Of Customs, Air Cargo ... on 20 November, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/1477/02
[Arising out of Order-in- Original No. CC -53/2002 ADJN ACC dtd. 9/8/2002 passed by the Commissioner of Customs Air Cargo Complex, Mumbai]
For approval and signature:
Honble Mr. P.R. Chandrasekharan, Member(Technical)
Honble Mr Ramesh Nair, Member(Judicial)
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1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
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Rashtra Sant Tukdoji Cancer Hospital & Regional Cancer Centre
:
Appellant
VS
Commissioner of Customs, Air Cargo Complex, Mumbai
:
Respondent
Appearance
Shri. T Vishwanathan, Advocate for the Appellant
Shri. Senthil Nathan, Dy. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. P.R. Chandrasekharan, Member (Technical)
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 20/11/2014
Date of decision: 20/11/2014
ORDER NO.
Per : Ramesh Nair
The appeal is directed against Order-in- Original No. CC -53/2002 ADJN ACC dtd. 9/8/2002 passed by the Commissioner of Customs Air Cargo Complex, Mumbai, wherein the goods valued Rs. 61,30,125/- was confiscated under Section 111(o) of the Customs Act, 1962 with the option to redeem the same on payment of fine of Rs. 1,50,000/-, penalty of Rs. 25,000/- was imposed and the custom duty of Rs. 74,85,558/- was demanded.
1.1 The fact of the case is that the appellant M/s. Rashtra Sant Tukdoji Cancer Hospital & Regional Cancer Centre, Nagpur imported certain medical equipment between Jun 1989-Nov 1991 and availed exemption notification No. 64/88-Cus dated 1/3/1988 on the basis of Custom duty exemption certificate issued by Director General of Health Services(DGHS). The details of import are as follows:-
Sr No. B/E No. & Date Description of Goods Assessable Value (Rs.) No. & date of CDEC 1 Invoice No. NUCL/27/89 dt. 9-6-89 Rowland Oesophageal Applicator 31,000/- (Approx.) Z 37024/42/89-MG Dtd. 9.11.89
2. 13842/ 6.3.90 Olympus GIF Type Q- 20 QES Gastrointestinal Fibroscope 1,71,311/-
Z 37024/17/90-MG Dtd. 24.4.90
3. 3798 /15.11.91 Theratron Phoenix Teletherapy Unit.
59,27,814/-
Z 37024/19/91-MG Dtd. 9.10.91 Pursuant to the information that the appellants hospital failed to fulfilled the condition of the notification, the detail inquiry was conducted and statement of Dr. D.H. Singh, Chief Executive Officer & Medical Physicist was recorded under Section 108 of Customs Act, 1962. After investigation, a show cause notice dated 10/9/2001 was issued. In adjudication the exemption notification No. 64/88-Cus dated 1/3/1988 was denied, custom duty demand of Rs. 74,85,558/- was confirmed, the imported hospital equipments were confiscated with the option to redeem the same on payment of fine of Rs. 1,50,000/- and penalty of Rs. 25,000/- was imposed on the appellant. The above confirmation made by the ld. adjudicating authority on the ground that the notification has laid down following conditions:
(a) to give the free treatment, on an average, to at least 40% of all their outdoor patients.
(b) to give free treatment to all indoor patients belonging to families with an income of less than Rs. 500/- per month and to keep for this purpose at least 10% of all the hospital beds reserved for such patients and,
(c) to give treatment at reasonable charges, either on the basis of the income of all the patients concerned or otherwise, to patients other than those specified in clause (a) and (b) above.
On the investigation and even during the adjudication process the appellant could not produce proper records of having fulfilled the conditions of the notification, such as free treatment to the outdoor patients and free treatment to indoor patients having income less than Rs. 500 per month. In absence of compliance of the said condition of the notification, the charges of the show cause notice was confirmed and benefits of notification No. 64/88-Cus was denied. Hence, the appellant is before us.
2. Shri. T. Vishwanathan, ld Counsel for the appellant submits that the appellant had fulfilled the condition of providing free treatment to 10% IPD patients in the year 1998-1999 except percentage being less i.e. 9.96% in the year 1995-96 and 9.37% in 1996-97. It is his submission that during 1990-91 till 1993-94 the average 42.5 % outdoor patients were treated freely and during the same period average 19.48 % indoor patients were treated freely. He further submits that since the notification rescinded on 1/3/1994, the appellant was not under obligation to fulfill the said conditions of the notification thereafter. Ld. Counsel alternately submits that if at all exemption notification No. 68/88-Cus is not extended; they are otherwise entitled for alternate notification No. 65/88-Cus dated 1/3/1988, which is unconditional.
3. Shri. Senthil Nathan, Dy. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that though the appellant have been making their claim that in certain year, they have complied the condition of the notification regarding free treatment to the patients, however they have neither produced the records in support of their claim during the investigation and even during the adjudication. He invited our attention to the Annexure 1 to the show cause notice, wherein detail of year wise, number of patients and percentage in respect of OPD patients and IPD patients was given. In the said Annexure, it is clearly mentioned that the proper registers were not maintained in support of the statistic filed. He also submits that in the statement of Dr D.H. Singh, Chief Executive Officer of the appellants hospital though he has stated that, the condition of free treatment of patients had been fulfilled but expressed his inability to produce the IPD registers, even in respect of OPD patients, registers were not maintained properly.
4. We have carefully considered the submissions made by both the sides.
5. The issue in dispute before us is whether the appellant is entitled for benefit of notification No. 64/88-Cus dated 1/3/1988 or otherwise. In order to avail the said notification the following conditions are require to be complied with.
(d) to give the free treatment, on an average, to at least 40% of all their outdoor patients.
(e) to give free treatment to all indoor patients belonging to families with an income of less than Rs. 500/- per month and to keep for this purpose at least 10% of all the hospital beds reserved for such patients and,
(f) to give treatment at reasonable charges, either on the basis of the income of all the patients concerned or otherwise, to patients other than those specified in clause (a) and (b) above.
The appellant, though have claimed that they have fulfilled the conditions of the notification no. 64/88-Cus as regard giving free treatment to OPD and IPD patients but on careful perusal of records and statement given by Dr. D.H. Singh, Chief Executive Officer of appellants Hospital, this fact is undisputed that the appellant could not produce any record in support of their claim as regard free treatment given to IPD and OPD patients. In Annexure 1 to show cause notice, which is chart showing year wise, number of patients and percentage thereof in respect of OPD patients. It is categorically mentioned that in none of the years, proper registers are maintained in support of statistics filed. In respect of details of IPD patients also there is a mention registers not produced in support of this claim. It is also observed that Dr. D.H. Singh in various statements stated that the record of free treatment of IPD and OPD patients are not traceable. It is therefore clear that the appellant at any point of time could not produce any record in support of their claim of having fulfilled the condition of notification no. 64/88. It is settled position in law that it is for the person who claiming benefit of exemption notification to lead evidence to show that he is entitled for the same. In the present case the appellant has failed in leading evidences to substantiate their claim. As regard the claim of the appellant for notification no. 65 /88-Cus to be extended, we are of the view that this particular issue has not been dealt with by the lower adjudicating authority, therefore it is just and proper that the matter should be remanded to the adjudicating authority to consider the eligibility of the notification no. 65/88-Cus.
5.1 In view of above discussions, we are of the considered view that the appellant has not fulfilled the condition laid down in the notification no. 64/88-Cus. Accordingly they are not entitled for the same. Accordingly we pass the following order:
(a) The appellant is not entitled for the exemption notification no. 64/88-Cus, however, in the facts and circumstances of the case, the penalty of Rs. 25,000/- is waived.
(b) The matter is remanded to the adjudicating authority to consider the admissibility of notification no. 65/88-Cus to the appellant in accordance with the law by passing a fresh order, preferably within a period of two months from the receipt of this order.
The appeal is disposed of in the above terms.
(Operative part of the order pronounced in the Court) P.R. Chandrasekharan Member (Technical) Ramesh Nair Member(Judicial) sk 8