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TMI Blog1998 (9) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corpn. of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of relevant notification which was duly granted by the Customs Authority. 5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C. Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad. 6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s. Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service and Industrial Credit and Investment Corpn. of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable. 11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unning and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society. 14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines. He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines. 15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon ble Supreme Court in the case of Mediwell Hospital Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah. 21. In the appeals filed by Industrial Credit and Investment Corpn. of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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