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TMI Blog1998 (4) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... of the first applicant (hereinafter referred to as second applicant). The demand arises from the denial of the banefit of duty free import of capital goods and raw materials in terms of Notification 339/85 and 133/94, for the reason that the capital goods and raw material imported free of duty by the first applicant were found to be lying unutilised for a number of years, thereby violating the conditions of the above mentioned Notifications. The Department has invoked the provisions of Section 111(o) of the Customs Act, 1962 and Rule 173Q(2) of the Central Excise Rules, 1944. 2. Learned Counsel, Shri J.S. Sinha, submits that the applicant No. 1 had imported both capital goods viz. clinical theremometer machinery for initial setting up of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt company has filed an application for being declared a sick company, has been registered by BIFR. In these circumstances, he prays for waiver of predeposit and stay of recovery of duty and penalty. 3. Shri Lakhinder Singh, learned JCDR opposes that prayer of the applicants, drawing our attention to the impugned order from which it is seen that the first applicant could not use the capital goods for the purpose for which they were imported as is evident from the production performance of the Unit which could export goods worth Rs. 57 lakhs only, which forms only 5% of the total export obligation of Rs. 1150 lakhs. He submits that the Unit is lying closed and the captial goods and raw materials have not been utilised for a number of year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere installed and utilised for some time. However, this by itself is not prima facie sufficient to hold that the benefit of duty free import is available under the relevant Notifications. Prima facie their continuous use is necessary for the purpose of claiming the benefit of Notifications. The judgment of the Apex Court cited by the learned JCDR is very relevant in this context as the Court has held, in the context of Notification 64/88 which grants exemption from customs duty to hospital equipments imported by specified categories of hospitals that the objective of the Notification must be achieved and the authorities who have granted the certificate of exemption should ensure that the obligation imposed are continuing to be carried out a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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