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TMI Blog2010 (1) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... the Applicant. Shri S.K. Mishra, ASG, for the Respondent. [Judgment per : D.D. Sinha, J.]. - Rule made returnable forthwith. Heard finally by the consent of Mr. K.H. Deshpande, learned Senior Counsel for the Applicant and Mr. S.K. Mishra, learned Assistant Solicitor General of India for Respondent Nos. 1 to 3. 2. Mr. K. H. Deshpande, learned Senior Counsel has submitted that the facts which have given rise to filing of present review application as well as Custom Appeal No. 1 of 2005, in the nutshell, are as under : The applicant purchased two machines namely (1) Echo Cardiograph with Colour Mapping with Standard Accessories and (2) Computerized Stress System with Tread Mills for the purpose of treatment of patients in the hospital. However, those machines were not then manufactured in India and hence, the same were required to be imported. The instant Custom Appeal relates to Computerised Stress System with Tread Mills machine (hereinafter referred to as "the said equipment"). 3. The applicant purchased the said equipment at the value of Rs. 6,76,573/- and it was imported vide bill of entry No. 90/14788 dated 9th April, 1990 at the Air Cargo Complex, New Delhi. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand for duty was in express violation of statutory provisions and hence, is liable to be set aside. 6. The Commissioner of Customs preferred an appeal before the Customs, Excise and Service Tax, Appellate Tribunal, New Delhi challenging the order dated 31-3-2004 by filing an appeal which was allowed by order dated 13-12-2004. Being aggrieved by the order dated 13-12-2004 [2005 (191) E.L.T. 249 (Tri-Del.)], the appellant has preferred instant Custom Appeal No. 1 of 2005 before this Court, which is admitted on 24-6-2005 on the substantial questions of law incorporated in Ground Nos. (a) to (i) of the present appeal. 7. Mr. K.H. Deshpande, Learned Senior Counsel for appellant/applicant has submitted that, it is pertinent to note that the second machine which was imported from Norway by the applicant namely Echo Cardiograph with Colour Mapping with Standard Accessories was received at Mumbai Airport on 19-6-2000. It is further submitted that a Show Cause notice was issued by the Commissioner of Customs, Mumbai; the Show Cause Notice was initially challenged by filing Writ Petition before the Nagpur Bench of Bombay High Court.; however, the petition was dismissed. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved review application for reviewing the order dated 7-10-2008 mainly in view of the subsequent events such as order dated 3-6-2009 passed by the Commissioner of Customs, Mumbai in case of the applicant only, but, in respect of another machine which was imported from Norway i.e. Echo Cardiograph with Colour Mapping with Standard Accessories received at Mumbai Airport and on which the applicant had also claimed total exemption from payment of Custom duty under Notification No. 64/88, dated 1-3-1988, which also was granted on the basis of Custom Duty Exemption Certificate issued by the then Director General of Technical Development. It is contended that another machine i.e. Computerised Stress System with Tread Mill received by the applicant at Air Cargo Complex, New Delhi; the applicant had claimed total exemption from payment of Custom duty under same notification No. 64/88 dated. 1-3-1988. It is contended that the Commissioner of Customs, Mumbai vide order dated 3-6-2009 held that the applicant is entitled to have benefit of exemption available under Notification No. 65/88 and 140/90 so far as machine i.e. Echo Cardiograph with Colour Mapping with Standard Accessories is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how much custom duty becomes recoverable from the applicant upon confirmation of Show Cause notice will have to be determined under Section 28 read with Section 125 of the said Act by the competent Authority, which shall be independent of decision of Show Cause notice under Section 124 read with Section 25(1) of the said Act. It is submitted that none of the parties have till this date carried out such exercise of determining custom duty payable upon confiscation of goods/equipments. Without prejudice to all these contentions raised in the Custom Appeal No. 1 of 2005, the applicant has submitted that, the respondents are required to be directed to perform their statutory obligation of determining the assessment of custom duty in terms of Section 28 and Section 125 of the said Act read with Notification No. 140/1990, dated 20-3-1990 and notification No. 65/2008, dated 1-3-1988. The CESTAT, Bombay after taking into consideration this aspect, vide order dated 18-6-2008 remanded back the matter to the Commissioner of Customs, Mumbai in respect of another machine of the applicant to consider eligibility and applicability of notification No. 65/88 and 140/90 and therefore, petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Since the machines were imported for the purpose of treatment of patients in the hospital, the applicant claimed total exemption under Notification No. 64/88, dated 1-3-1988. Machine No. 1 was received at Mumbai Airport. Machine No. 2 was received at Air Cargo Complex, New Delhi. (iii) The Custom Departments, New Delhi and Bombay alleged that the applicant in both the cases failed to comply with Condition Nos. 2(a) and 2(b) of Notification No. 64/88 and issued show cause notices to the applicant. On receipt of replies, the Additional Custom Commissioner, New Delhi passed order dated 28-9-2002 of confiscation of Computerised Stress Systems with Tread Mill with payment of redemption fine, demanded Custom duty and imposed penalty. The applicant preferred appeal before the Commissioner of Custom (Appeals) which was allowed on 31-3-2004 and the said order was set aside by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi vide order dated 13-12-2004, against which Custom Appeal No. 1 of 2005 is admitted. (iv) Similarly, so far as Machine - Echo Cardiograph with Colour Mapping with Standard Accessories, which was received at Mumbai Airport by the applicant is concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead Mill is liable to be confiscated and the applicant is liable to pay penalty, custom duty; whereas the Customs, Excise and Service Tax Appellate Tribunal, Mumbai vide order dated 18-6-2008 though rejected the claim of applicant pertaining to Notification No. 64/88; however, remanded the case of applicant to Commission of Customs, Mumbai, who was asked to examine and consider eligibility of the applicant in respect of benefits pertaining to Notification No. 65/88 read with 140/90. The Commissioner of Customs, Mumbai vide order dated 3-6-2009 held that the applicant is entitled to get benefit under Notification No. 65/88 read with Notification No. 140/90. It is pertinent to note that the Department of Customs has accepted the said order and has not preferred any appeal against the same. 18. It is not in dispute that when Civil Application No. 5561 of 2008 came to be rejected by this Court vide order dated 7-10-2008, at that time the appeal filed by the applicant against the order passed by the Commissioner of Customs, Mumbai dated 1-4-2002 was pending before the CESTAT, Mumbai. The CESTAT, Mumbai vide order dated 18-6-2008 remanded the issue to decide eligibility of applicant in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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