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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 ..... ustom 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 applicant claimed total exemption from payment of Custom duty as per Notification No. 64/1988, dated 1-3-1988. The applicant was granted exemption from payment of Custom duty on the basis of Custom Duty Exemption Certificate (CDEC) dated 9-2-1990 issued by the then Director General of Technical Development, holding that the applicant is eligible for grant of said Certificate, in terms of said Notification. 4. The learned Senior Counsel has contended that respondent No. 1 issued a Show Cause notice dated 14-7-2000 bearing No. C-SIIB/CUS/32/2000, under Section 124 read with Section 25(1) of the said Act alleging that the applicant has failed to comply with the condition Nos. 2(a) and 2(b) of the Notification. It was also alleged that the applicant failed to attain prescribed percentage of giving free treatment to indoor and outdoor patients, as required by the said Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submitted that, against dismissal of the petition, Special Leave Petition was preferred before the Supreme Court, which was also dismissed; however, the Supreme Court granted liberty to the applicant to file reply to the Show Cause Notices and to take recourse to the legal remedies available under the Customs Act, 1962. It is contended that the applicant accordingly filed reply to the Show Cause Notice with the Commissioner of Customs, Mumbai on 28-9-2001. The Commissioner of Customs passed final order on 1-4-2002 and raised demand of duty plus penalty in addition to demand of fine, of Rs. 25.87 lacs on the ground that the appellant had violated the conditions of notification No. 64/88. The applicant preferred appeal before the CESTAT at Mumbai. The CESTAT Mumbai passed final order rejecting the points relating to the claim of the applicant in the matter of exemption available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The learned Senior Counsel has contended that the department did not file any appeal against the order dated 3-6-2009 passed by the Commissioner of Customs, Mumbai and suffered the said order. It is in such circumstances, the applicant has filed review application and submitted that, if the department has accepted the decision of the Commissioner of Customs, Mumbai regarding entitlement of the applicant to have a benefit of exemption available under notification Nos. 65/88 and 140/90 on one machine out of two imported by the applicant and the order of Commissioner of Customs, Mumbai is not appealed against, in that event, there is no justification why the department should deny the same benefit of exemption under Notification Nos. 65/88 and 140/90 to the applicant on the another machine i.e. Computerised Stress Systems with Tread Mill in the similar factual and legal situation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ESTAT, 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 filed present review petition for reviewing the order dated 7-10-2008 and prayed that similar direction be given to the Commissioner of Customs, Delhi. 13. Mr. S.K. Mishra, Assistant Solicitor General of India for Respondent Nos. 1 to 3 has contended that the order impugned dated 7-10-2008 is a well reasoned order and therefore, there is no case made out for review of the said order. It is further submitted that the applicant imported the machine in question and claimed exemption from payment of customs duty as per Notification No. 64/88 dated 1-3-1988; however, since the applicant failed to comply with Condition Nos. 2(a) and 2(b) of the notification, Show Cause notice was issued to the applicant and after receipt of reply of the applicant, the Additional Commissioner of Customs, New Delhi passed an order dated 2-9-2002 regarding confiscation of the machine in question and impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 concerned, on 19-6-2000 a show cause notice was issued by Commissioner of Customs, Mumbai. Reply to the said Show Cause Notice was filed by the applicant. The Commissioner of Customs passed an order on 1-4-2002 and raised demand of Custom duty plus penalty plus fine for violation of conditions of Notification No. 64/88. The applicant preferred Appeal before CESTAT at Mumbai. The CESTAT, Mumbai passed an order dated 18-6-2008 rejecting the claim of applicant in the matter of exemption from payment of custom duty as per Notification No. 64 of 88. However, the case is remanded back to the Commissioner of Customs, Mumbai who was asked to examine the eligibility of applicant vis-a-vis Notification No. 65/88. So far as rejection of claim of applicant in respect of exemption from the payment of duty under Notification No. 64/1988 is concerned, Special Leave Petition is filed in the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respect of Notification No. 65/88 read with 140/90 to the Commissioner of Customs, Mumbai, who, by order dated 3-6-2009 held that the applicant is eligible to avail the said benefit. In the backdrop of the above referred facts, it is evident that, on 7-10-2008 i.e. the date on which Civil Application No. 5561 of 2008 filed by the applicant was heard and dismissed by this Court, order dated 3-6-2009 passed by the Commissioner of Customs, Mumbai was not in existence and therefore, the said fact could not be placed before this Court by the applicant nor the Court could consider the same. It is pertinent to note that the department did not file appeal either against the order dated 18-6-2008 passed by the CESTAT nor the order dated 3-6-2009 passed by the Commissioner of Customs, Mumbai and accepted both the orders. It is in these changed circumstances and considering the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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