2015 (11) TMI 499 - AT - Customs

Import of medical equipment - condition of free treatment to outdoor and indoor patients - Violation of condition and benefit of notification 64/88-Cus dated 1/3/1998 - Held that - On the identical issue there are two conflicting judgments of this Tribunal one is Sunitidevi Singhania Hospital & Medical Research Centre (2014 (11) TMI 738 - CESTAT MUMBAI) wherein division bench of this Tribunal - And another is in case of Sir H.N. Hospital & Research Centre (2010 (10) TMI 390 - CESTAT, MUMBAI) where this Tribunal has allowed the appeal holding that condition of the notification 64/88-Cus for the period past rescission of notification is not required to be fulfilled. - Since there are conflicting decisions in the issue in the case registry is directed to place this matter before the Hon ble President for constituting Larger Bench for answering the question - In case of non fulfillment of condition 2(a) and 2(b) of the table of the Notification No. 64/88-Cus dated 1/3/1988 during the period after rescission of Notification No. 64/88-Cus vide Notification No. 99/94 dated 1/3/1994, whether importer is entitled to the notification No. 64/88-Cus in respect of import taken place and condition 2(a) and 2(b) has been complied with before rescission of Notification No. 64/88-Cus.

Issues:
1. Denial of exemption under Notification No. 64/88-Cus.
2. Confiscation of imported medical equipment.
3. Imposition of penalty under Section 112(a) of the Customs Act, 1962.
4. Violation of conditions of the notification by the importer.
5. Conflict in judgments regarding fulfillment of conditions post rescission of the notification.

Issue 1: Denial of exemption under Notification No. 64/88-Cus:
The appellant, a hospital, imported medical equipment claiming exemption under Notification No. 64/88-Cus dated 1/3/1998. The Commissioner of Customs denied the exemption as the hospital failed to fulfill the conditions of the notification, leading to a duty demand of Rs. 4,59,760.40. The hospital was also given the option to redeem the confiscated equipment on payment of a fine. The appellant argued that as a charitable organization under Sr. 1 of the notification, no conditions were required to be fulfilled, and even if conditions under Sr. 2 were not met, exemption should still apply. The appellant presented certificates from the Joint Director of Health Services to prove compliance with certain conditions. The appellant contended that post rescission of the notification, conditions could not be insisted upon, citing legal precedents. The Tribunal directed the matter to be resolved by a Larger Bench due to conflicting judgments on this issue.

Issue 2: Confiscation of imported medical equipment:
The Commissioner ordered confiscation of the imported medical equipment under Section 111(o) of the Customs Act, 1962, with an option for redemption on payment of a fine. The leniency was granted due to the age of the goods and the reduced market value. The appellant sought relief from the confiscation and penalty imposed.

Issue 3: Imposition of penalty under Section 112(a) of the Customs Act, 1962:
A penalty of Rs. 25,000 was imposed on the appellant for non-compliance with the conditions of the notification. The appellant contested the penalty, arguing compliance with certain conditions and seeking relief based on legal interpretations regarding post-rescission obligations.

Issue 4: Violation of conditions of the notification by the importer:
The appellant was found to have not fulfilled the conditions of providing free treatment to a percentage of outdoor and indoor patients as required by the notification. The appellant presented certificates and explanations to justify compliance, while also challenging the findings based on the Rosha Committee report.

Issue 5: Conflict in judgments regarding fulfillment of conditions post rescission of the notification:
The Tribunal noted conflicting judgments on whether non-fulfillment of conditions post rescission of the notification would affect the entitlement to exemption. The matter was referred to a Larger Bench to resolve the question of whether importers could be entitled to the notification despite non-compliance after the rescission of the notification.

In conclusion, the Tribunal directed the matter to a Larger Bench for resolution due to conflicting judgments on the issue of fulfillment of conditions post rescission of the notification, while other issues related to denial of exemption, confiscation of equipment, and imposition of penalties were subject to further review based on the Larger Bench's decision.

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