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TMI Blog2010 (10) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice dated 10-9-1999 wherein it was alleged that the appellant had violated the post-importation conditions of Notification 64/88 ibid and hence liable to pay duty on the goods and be penalised for the offence of such violation. The appellant, in their reply to the show-cause notice, denied all the allegations and maintained that they had duly complied with the conditions of the above Notification. It was in adjudication of this dispute that the impugned order was passed. 2. Reiterating the grounds of the appeal, learned counsel for the appellant submits that, essentially, there were only two allegations in the show-cause notice. Firstly, it was alleged that the hospital had charged Rs. 50/- per patient towards stationery and administrative expenses during three months from 1-8-1999 in violation of one of the conditions of the above Notification. Secondly, it was alleged that some of the inpatients having income of less than Rs. 500/- per month were billed for certain categories of surgery done on them from 1996 onwards, which was allegedly in violation of a condition attached to the Notification. Learned counsel further points out, as a matter of fact, the poor inpat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso referred to the provisions of Section 159A of the Customs Act in the context of discussing the effect of rescission of Notification No. 64/88-Cus. It is the contention of the learned counsel that any liability incurred by the appellant under Notification No. 64/88-Cus. in relation to the medical equipments imported by them cannot extend beyond 28-2-1994 inasmuch as the above Notification was rescind on 1-3-1994 and, by virtue of clauses (c) and (e) of Section 159A of the Customs Act and the aforesaid decisions there can be no proceedings against the appellant either for demand of duty or for confiscation or for imposing penalty on the ground that any of the conditions of the Notification was violated after the rescission of the Notification. In the instant case, breach of conditions of the Notification was alleged for a period post 28-2-1994 and, therefore, the show-cause notice and further proceedings of the department against the hospital are liable to be set aside. Reverting to the facts of the case, the learned counsel points out that, during the period from the dates of imports of the medical equipments to the date of rescission of the Notification, the hospital scrupulous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y retrospectively so as to render the importer of medical equipments ineligible for the benefit of the above Notification even where such cancellation of CDECs was done subsequently in breach of principles of natural justice. Learned SDR has referred to the decision of the this Bench on both the issues. On the first issue, the Tribunal held that the liabilities incurred under Notification 64/88-Cus. would continue even after the rescission of the Notification. On the second issue, the learned SDR has banked on the following observations of the Tribunal : "We find that the appellants do admit that prior to the rescission of notification, if the conditions of the notification are violated, then duty can be demanded as unanimously held by the Madras High Court, Bombay High Court and Supreme Court in Jagdish Cancer etc. and since possession of a certificate from DGHS is one of the conditions of notification which stands violated, after it is withdrawn, the analogy has to be equally applied to the cancellation of certificates cancelled during the pendency of notification and those cancelled after the rescission of the notification." 5. We have given careful consideration to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in use till date. The Medical Director also claimed that the hospital had given free treatment to 40% (average) to OPD patients and had also been keeping 10% of the hospital beds reserved for patients whose income was less than Rs. 500/- per month. However, the investigating officers were not satisfied and they seized the equipments on 6-3-1999 alleging that the hospital had not complied with the conditions of Notification 64/88-Cus. Further investigations were conducted to verify the authenticity of the statement given by the Medical Director and the hospital was visited again by the officers for this purpose. The Medical Director handed over certain registers/documents/files/cash vouchers/computer receipts/internal circulars of the hospital to the SIIB team and also gave another statement on 27-8-1999. The documents so handed over to the SIIB included OPD clinical receipts for Rs. 50/-, hospital internal circular dated 24-7-1999 regarding fees to be charged in casualty cases, another internal circular dated 29-3-1996, specimen bills taken from three bill folders relating to January to March, 1995 and excerpts from IPD register for the period January to March, 1995. In answer to q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how-cause notice apparently proceeded to frame a case against the hospital based on their conduct for the period after 1994. As a part of this exercise, a scrutiny of the OPD clinic receipts for the amounts (Rs. 50/- per patient) collected from OPD and casualty patients towards stationery and administrative expenses was conducted and specimen bills issued to patients during the period January to March, 1995 and excerpts from IPD register for the same period were also examined. Ultimately, the show-cause notice concluded that the hospital had failed to substantiate their claim for the relevant year (1994-95). It was alleged that the hospital failed to furnish all the cash vouchers for 1994-95 and that such vouchers were supplied only for 18 days. The show-cause notice further stated thus : "The hospital has expressed inability to provide full records for the relevant period. The hospital thus appeared to have been unable to fulfill the condition of Notification 64/88 for providing free treatment to 10% IPD patients." It was further alleged as under : "(A) Patients having certain specific diseases are not treated free even if their income is less than Rs. 500/- as per the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities. As rightly pointed out by the learned counsel, this view is equally applicable to the corresponding clauses of Section 159A of the Customs Act. Section 159A deals with effect of amendments of rules, regulations, notifications or orders. According to this provision of law, where any notification is rescinded, then, unless a different intention appears, the rescission shall not - "(a) ............. (b) ............. (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any rule, regulation, notification or order so amended, repealed, superseded, or rescinded; or (d) ............. (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid." We note that the provisions of Clauses (c) and (e) of Section 159A of the Customs Act are pari materia with the corresponding clauses of Section 6 of the General Clauses Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made it clear that it was not open to the petitioners to contend that Notification 64/88 had been rescinded and as such their obligation also ceased. It was further observed that the rescission of Notification 64/88 was not part of the discussion by the Hon'ble Supreme Court in the case of Faridabad CT Scan Centre, 1997 (95) E.L.T. 161 (S.C.) nor by any other Court. In our considered view, the above ruling of the Hon'ble High Court in the case of Apollo Hospitals Enterprise Ltd. (supra) would clinch the issue under consideration in the instant case. We further note that, in the case of Bharath Diagnostic Centre (supra), a Larger Bench of this Tribunal considered the above decision of the Hon'ble High Court and rejected the contention raised by the hospital. The contention of the hospital was that, if any violation of Notification 64/88 during the period of its life was detected after rescission of the Notification, no action could be taken by the authorities. The Larger Bench observed that there was nothing in the decision of the High Court in Apollo Hospitals Enterprise case which warranted such inference. The Larger Bench proceeded to consider the Hon'ble High Court's decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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