9911796707
TMI Blog2000 (8) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... 27-11-1990 respectively against Customs Duty Exemption Certificates dated 28-2-1990 and 16-11-1990. The importers availed the benefit of exemption under Notification No. 64/88-Cus., dated 1-3-1988 and cleared the goods duty free. At the time of import, they furnished an undertaking in writing to the Assistant Commissioner of Customs at the time of clearance to the effect that they shall furnish certificates evidencing installation of the imported hospital equipment and functioning of the hospital within a period of two years. Since such certificates from the prescribed authority namely DGHS or Ministry of Health and Family Welfare were not produced within the stipulated period, the Department issued show cause notice proposing recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) the whole of the additional duty leviable thereon under section 3 of the said Customs Tariff Act. 2. In approving the import of any hospital equipment under paragraph 1, regard shall be had to the following factors namely :- (i) that the hospital equipment in respect of which the exemption is claimed under this notification is not manufactured in India; and (ii) that the hospital equipment in respect of which the exemption is claimed is necessary for running or maintenance of the hospital. 3. Provided that in the case of import of spare parts, no approval as specified in paragraph 1 will be required subject to the condition that - (i) the spare parts are imported by the hospital; (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses (a) and (b). 3. Any such hospital in respect of which the said Ministry of Health and Family Welfare, may, having regard to the type of medical, surgical or diagnostic treatment available there, or the geographical situation thereof, or the class of patients for whom the medical, surgical or diagnostic treatment is being provided, certify either generally or in each case, that the hospital even though it makes a charge for the said treatment, is nevertheless run on non-profit basis and is deserving of exemption from the payment of duty on the said hospital equipment under this notification. Provided that the hospital equipment in respect of which the exemption is claimed, is imported by such hospital by way of free gift from donor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said hospital equipment that the importer shall furnish certificates from the said Ministry of Health and Family Welfare or from the Directorate General of Health Services, Government of India, within such period as the Assistant Collector of Customs may specify in this behalf or within such extended period as the Assistant Collector of Customs, on sufficient cause being shown, may allow in each case, to the effect, (i) that such hospital equipment has been installed in the hospital; and (ii) that such hospital has started functioning. (c) the importer shall furnish, at the appropriate time, the certificates referred to in (b); (d) the importer executes a bond in such form and for such sum as m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al covered by Sl. No. 2 of the Table and not by Sl. No. 4, such condition is not applicable to it. We see force in this submission. First of all, we note that the post import conditions such as furnishing of certificate regarding installation of equipment and functioning of hospital is contained in the proviso to the table annexed to the notification and is not incorporated in the main body of the notification. This lend support to the view that the proviso incorporating this condition only governs Sl. No. 4 of the Table to the Notification. Secondly the certificate from DGHS and Ministry of Health and Family Welfare referred to in clause (b) of the relevant proviso has to be to the cumulative effect that the imported hospital equipment has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no allegation or finding that the equipments were diverted for use outside the hospital. 5. The case law cited by the learned DR in support of his contention that the post importation conditions are to be treated as continuing obligation on the importers, is distinguishable from the facts of the present case. In the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in [1997 (89) E.L.T. 425], the Hon'ble Supreme Court has held that Notification No. 64/88-Cus., dated 1-3-1988 (the very same notification which is under consideration in the present appeal) must be construed to cast continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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