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2. Reiterating the grounds of the appeal, learned counsel for the appellant submits that, essentially, there were only two allegations in the show-cause notice. Firstly, it was alleged that the hospital had charged Rs. 50/- per patient towards stationery and administrative expenses during three months from 01/08/1999 in violation of one of the conditions of the above Notification. Secondly, it was alleged that some of the inpatients having income of less than Rs. 500/- per month were billed for certain categories of surgery done on them from 1996 onwards, which was allegedly in violation of a condition attached to the Notification. Learned counsel further points out, as a matter of fact, the poor inpatients who were billed by the hospital did not have to pay anything out of their pocket inasmuch as donations from philanthropists were arranged by the hospital itself for payment of the relevant bills. It is further submitted that, apart from upholding the allegations raised in the show-cause notice, the adjudicating authority also relied on an order dated 09/02/2001 of the Directorate-General of Health Services (DGHS), whereby the Customs Duty Exemption Certificates (CDEC) which had been issued by the DGHS to the hospital to facilitate duty-free clearance of the medical equipments were "withdrawn as cancelled". It is submitted that it was not open to the Commissioner to rely upon the order of DGHS which was issued after issuance of the show-cause notice, especially where the DGHS himself was a co-noticee. In this connection, the learned counsel has further contended that, though the cancellation of CDECs was not challenged by the hospital before any court of law, it is open to them to question its validity in collateral proceedings like the present one. In this context, the learned counsel has claimed support from Hon'ble Bombay High Court's judgment in Yeshwant Gajanan Joshi and Others vs. Hindustan Petroleum Corporation Ltd AIR 1988 BOMBAY 408 and the Hon'ble Madras High Court's judgment in Nuwood Private Ltd. vs. Superintendent of Central Excise 1981 (8) ELT 184 (Mad.).

(i) Appollo Hospitals Enterprises Ltd. vs. Union of India 2001 (133) ELT 58 (Mad.);

(ii) Bharath Diagnostic Centre vs. Commissioner 2007 (207) ELT 113 (Tri-LB.);

Learned counsel has also referred to the provisions of Section 159A of the Customs Act in the context of discussing the effect of rescission of Notification No. 64/88-Cus. It is the contention of the learned counsel that any liability incurred by the appellant under Notification No. 64/88-Cus in relation to the medical equipments imported by them cannot extend beyond 28/02/1994 inasmuch as the above Notification was rescind on 01/03/1994, and by virtue of clauses (c) and (e) of Section 159A of the Customs Act and the aforesaid decisions, there can be no proceedings against the appellant either for demand of duty or for confiscation or for imposing penalty on the ground that any of the conditions of the Notification was violated after the rescission of the Notification. In the instant case, breach of conditions of the Notification was alleged for a period post-28/02/1994 and, therefore, the show-cause notice and further proceedings of the department against the hospital are liable to be set aside. Reverting to the facts of the case, the learned counsel points out that, during the period from the dates of imports of the medical equipments to the date of rescission of the Notification, the hospital scrupulously followed the conditions of the Notification. It is submitted that this fact, which was stated by the Medical Director of the hospital in a statement under Section 108 of the Customs Act and categorically pleaded in the reply to the show-cause notice, has not been rebutted in the impugned order. It is further submitted that the DGHS was also monitoring the conduct of the appellant periodically till the Notification was rescinded. In this connection, learned counsel has referred to the inspection reports of the Directorate-General of Health Services, Maharashtra (copies available on record), on the basis of which DGHS issued CDECs. In this scenario, it is contended, there can be no action against the appellant on the alleged ground of breach of conditions of Notification No. 64/88-Cus.

4. Learned SDR submits that the issue involved in the instant case is apparently covered in favour of the Revenue by a judgment of the Hon'ble Bombay High Court vide Shah Diagnostic Institute Pvt. Ltd. vs. Union of India 2008 (222) ELT 12 (Bom.). It is submitted that the Hon'ble High Court referred specifically to Section 159A of the Customs Act and held that the rescission of Notification No. 64/88-Cus did not affect the liability incurred by the petitioners with regard to fulfillment of Clause 2(b) of the Notification. According to the learned SDR, this view taken by a Division Bench of the High Court should be preferred to the view taken by a learned Single Judge of the Hon'ble Madras High Court in Appollo Hospitals Enterprises Ltd. (supra) case. It is argued that, if the Bombay High Court's decision in Shah Diagnostic Institute Pvt. Ltd. (supra) case is followed, the present appellant must be held to be liable to pay duty on the goods in question and be penalised on the ground of breach of conditions of Notification No. 64/88-Cus. Learned SDR has also claimed support from a decision of this Bench vide Central India Institute of Medical Science vs. Commissioner 2008 (231) ELT 113 (Tri.-Mumbai). Learned SDR has relied on this decision for two purposes. Firstly, on the question whether any cause of action would lie against the importer of medical equipments who availed the benefit of Notification No. 64/88-Cus only for a period up to the date of rescission of the Notification and not thereafter. Secondly, on the question whether the cancellation of CDECs could apply retrospectively so as to render the importer of medical equipments ineligible for the benefit of the above Notification even where such cancellation of CDECs was done subsequently in breach of principles of natural justice. Learned SDR has referred to the decision of the this Bench on both the issues. On the first issue, the Tribunal held that the liabilities incurred under Notification 64/88-Cus would continue even after the rescission of the Notification. On the second issue, the learned SDR has banked on the following observations of the Tribunal:

10. Yet another issue which was been agitated before us is as to what would be the effect of withdrawal/cancellation of the CDECs issued by the DGHS. The DGHS issued CDECs at the time of the subject imports but the same came to be "withdrawn as cancelled" on 9th February, 2001. According to the learned SDR, it was a cancellation ab initio. According to the learned counsel, it was not so. He has further argued that it is open to the appellant to question the legality of the DGHS order of cancellation in the present proceedings. We do not think that this is an appropriate case to deal with this issue. We have already found to the effect that the department has no jurisdiction to proceed against the appellant-hospital in terms of Notification No. 64/88 on the ground that the hospital committed breach of conditions of the Notification post - 28/02/1994. That being so, any aspect of the withdrawal / cancellation of the CDECs is of no relevance.