Custom, Excise & Service Tax Tribunal
Mhaskar'S Medical Foundation vs Acc, Mumbai on 9 September, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO: C/498/2007 (Arising out of Order-in-Appeal No: 28/2007 Misc(ACC) dated 05/03/\\4/2007 passed by the Commissioner of Customs (Appeals), Airport, Mumbai. For approval and signature: Hon'ble Shri P.G. Chacko, Member (Judicial) Hon'ble Shri S.K. Gaule, Member (Technical) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? : No 2. Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? : No 3. Whether Their Lordships wish to see the fair copy of the Order? : Seen 4. Whether Order is to be circulated to the Departmental authorities? : Yes Mhaskar's Medical Foundation ...Appellant Vs Commissioner of Customs (Import) ACC, Mumbai ...Respondent
Appearance:
Shri M.L. Grover, Advocate for the appellant Shri V.K. Singh, Authorised Representative (SDR) for the respondent. CORAM:
Hon'ble Shri P.G. Chacko, Member (Judicial) Hon'ble Shri S.K. Gaule, Member (Technical) Date of decision: 09/09/2010 ORDER NO: ____________________________ Per: P.G. Chacko:
The appellant have imported three medical equipments viz: (i) Pediatric Cystoscope Urethroscope, (ii) Ultrasonic Litho-trite System and(iii) Flexible Fibero-ptic Urethroscope and claimed benefit of Notification No. 64/88-Cus dated 01/03/1988 in the relevant Bill of Entry which was filed on 25/07/1990. At the time of import, they had also produced Customs Duty Exemption Certificate (CDEC) from the Director-General of Health Services (DGHS). On the basis of the said certificate, the goods were assessed and accordingly allowed to be cleared without payment of duty. Later on, the department noted that the DGHS had subsequently withdrawn the CDEC after investigations which revealed that the importer had violated the conditions of the above Notification. Therefore, the department seized the above goods on 08/07/2002. After completing the investigations, they issued a show-cause notice on 07/01/2003 proposing: (a) to confiscate the goods under Section 111(o) of the Customs Act; (b) to impose penalty under Section 112(a) of the Act; and (c) to recover duty of Rs. 4,34,419/- by denying the benefit of the above Notification on the ground of breach of conditions attached thereto. These proposals were contested by the party. In adjudication of the dispute, the original authority confirmed the demand of duty against the appellant, ordered confiscation of the goods but allowed redemption against payment of a fine of Rs. 5,000/- and imposed a penalty of Rs. 5,000/- on the appellant. The appeal filed by the party against the decision, of the adjudicating authority did not succeed and hence the present appeal.
2. The learned counsel for the appellant fairly concedes that, in view of the relevant decisions of the apex court on the effect of breach of post-importation condition of Notification No. 64/88-Cus ibid, the appellant can no longer claim the benefit of that Notification. The learned counsel, however, puts forth an alternative claim for the benefit of partial exemption from payment of duty on the above goods under Notification No. 65/88-Cus dated 01/03/1988. According to the learned counsel, all the three equipments imported by the appellants are covered by "other medical equipments" mentioned in the table annexed to Notification No. 65/88-Cus ibid. It is submitted that two of the three equipments are Cystoscopes covered by the entry at serial No. 48 under "other medical equipments". It is submitted that the remaining equipment would either be covered by entry No. 18 or by entry No. 22 under "other medical equipments". It is submitted that, given an opportunity the appellant will be able to establish this case before the original authority. We have heard the learned SDR also.
3. After considering the submissions, we are of the view that the alternative plea raised by the appellant's counsel can be addressed by the original authority for the ends of justice. Accordingly, after affirming the decision of the lower authorities on the applicability of Notification No. 64/88-Cus to the facts of the case, we remand the matter to the original authority with a direction to consider the alternative claim of the appellant for partial exemption from payment of duty on the medical equipments under Notification No. 65/88-Cus. Needless to say that, the appellant should be given a reasonable opportunity of adducing evidence in support of the alternative claim as also of being personally heard. If the adjudicating authority is satisfied that the benefit of the new Notification can be granted to the party, he shall refrain from confiscating the goods or imposing any penalty and shall also make appropriate adjustments against any amount of duty already paid by the party.
(Dictated in Court) (S.K. Gaule) Member (Technical) (P.G. Chacko) Member (Judicial) */as ??
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