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TMI Blog2004 (6) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... d one Computerised Axial Tomography Scanner and a spare C.T. X-Ray Tube and availed the benefit of Notification No. 64/88-Cus. under Bill of Entry dated 24-7-91; that a show cause notice dated 17-9-98 was issued by the Assistant Commissioner, Customs to show cause as to why goods imported by them should not be confiscated and why penalty should not be imposed upon them under Section 112 of the Customs Act, that the Commissioner, under the impugned Order, has confiscated the impugned goods with an option to redeem the same on payment of redemption fine of Rs. 25 lakh and appropriate duty and has imposed a penalty of Rs. 2.5 lakh on the Appellants on the ground that they have not fulfilled the conditions specified in the Notification. 3.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs (Import) v. Jagdish Cancer Research Centre, 2001 (132) E.L.T. 257 (S.C.) is not applicable to the present matter inasmuch as the Bond with Bank Guarantee was executed by Jagdish Cancer Research Centre and rescinding of Notification No. 68/88-Cus. was not brought to the notice of the Supreme Court and that in that case, default was from the very beginning on account of not providing the installation certificate whereas in the present matter, the period starts after 1994 and the show cause notice was issued to Jagdish Cancer under Section 28(1) of the Customs Act. He also mentioned that there is no mens rea on the part of the Appellants; that both show cause notice and the impugned Orders are silent on this aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts they had fulfilled these conditions even before this Notification rescinded by Notification No. 99/94; that the Director General of Health Services has also cancelled the certificate of eligibility issued to them; that it has been held by the Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India Others, 1997 (89) E.L.T. 425 that providing free treatment in terms of Notification is a continuing obligation; that again in the case of Jagdish Cancer Research Centre (supra), the Supreme Court has held that a perusal of the condition in the Notification indicates that on an average, at least 40 per cent of all outdoor patients should be provided free treatment. It is, thus, at least 40 per cent or may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential orders thereon, on the ground as in this case that the importer had violated the conditions of Notification subject to which exemption of goods was granted without attracting the provisions of Section 28(1) of the Customs Act. Finally, the learned S.D.R., submitted that for the purpose of determining the quantum of redemption fine, the present condition of the imported goods is not material; that it has been held by the Larger Bench of the Tribunal in the case of Omex (India) v. Collector of Customs, 1993 (67) E.L.T. 832 (T) that redemption fine claimed should be fixed on the basis of the value of the goods on the date of importation. In reply, the learned Advocate mentioned that the facts in Jagdish Cancer Research Centre (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated as held by the Madras High Court in the case of Apollo Hospitals Enterprises Ltd. (supra). On the other hand, the Revenue has relied upon the decision in the case of Jagdish Cancer Research Centre (supra) wherein also the action has been initiated after the repeal of the Notification and the Supreme Court allowed the appeal filed by the Revenue holding that M/s. Jagdish Cancer Research Centre (supra) have failed to convince the Court that it has not failed to fulfil the conditions of the Notifications for providing free treatment to the patients as required therein. In view of this judgment of the Supreme Court, it is apparent that the action can be taken against the importers if they have violated the conditions stipulated in Not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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