9911796707
TMI Blog1998 (9) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... after payment of duty, since the notification did not give complete exemption. Later on, two show cause notices were issued after a visit to the appellant s premises where the machine having been seized and the other show cause notice dated 26-8-1994 is for demanding duty on the aforesaid machine inasmuch as the appellants were not found to comply with the conditions a, b and c of para 2 of table to Notification 64/88-Cus. It is appropriate at this stage to refer to para 8(b) of the show cause notice therein such an allegation has been made and has been referred to in the impugned order :- 8.B Paragraph 2 of the said table to the notification covers such hospitals which have been certified by the Ministry of Health and Family Welfare in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rall percentage of free patients since inception of the company upto October, 1992 comes to 4.82. (Details calculation enclosed as ANNEXURE XVII). The minimum requirement of atleast 40% free service as per clause (a) above does not therefore appear to be satisfied and this material fact has been knowingly suppressed by the importer so as to avail benefit of Notification No. 64/88 which otherwise would have been inapplicable in their case and has thereby evaded customs duty to the tune of Rs. 59,03,033.30 by suppressing the material fact as described above. Clause (b) above does not appear to be satisfied as the company has no indoor facility for patients as stated by Dr. A.K. Sinha, Managing Director of the company at para IV of page 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act, 1962. 2. In replying to the aforesaid allegations contained in the show cause notice and in particular to the above para, appellant stated that such a post importation condition as has been given in Clause a, b and c of para 2 of Table to notification cannot be read in respect of hospital under consideration. Nevertheless, they stated even today the same services, as at the time of the grant of certificate by the DGHS and even earlier to that i.e. free services to an averagae of 40% of the outdoor patients etc. are being provided as evident in the chart enclosed. 3. On adjudication the adjudicating authority namely Commissioner of Customs, Delhi has observed with reference to the allegation contained in the show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dharan submits on the basis of the allegation and findings of the adjudicating authority that the Collector has not looked into the allegation and the reply thereof furnished by the appellants as regards the non-fulfilment of conditions a, b and c of para 2. However, he has gone on to find on an allegation which was not mentioned in the show cause notice, namely that it was the certificate of Ministry of Health and Family Welfare that was required to be produced and not a certificate of Directorate General of Health Services. On examining this submission of the learned Advocate, we have gone through para 8B of the show cause notice. It is clear from the allegation contained in para 8B of the show cause notice, points out that the learned Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates that the certificate required from the Ministry of Health and Family Welfare was a post importation certificate when it says that the hospital was required to give certificates to the extend of 40% free services to outdoor patients and 10% to other patients. This certificate has not been produced by the appellant and therefore the benefit of the notification has been rightly denied. 7. We have carefully considered the pleas from both sides insofar as the aforesaid submissions are concerned. We observe that the submissions of the learned Advocate are correct when he submits that no allegation regarding requirement of certificate from the Ministry of Health and Family Welfare was made in the show cause notice. Show cause notice alle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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