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TMI Blog2014 (12) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... , to that extent, the appellant appeal deserves to be given the benefit of no duty liability by modification of the order of the Tribunal, in the absence of a demand for duty by the original authority. In such view of the matter, the impugned order passed by the Tribunal deserves to be set aside. Accordingly, substantial questions of law 3 and 4 are answered in favour of the appellant/importer and against the Revenue. - Decidedin favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation of the goods and for penalty. The adjudicating authority, after appreciating the materials, passed the following order :- "27. As already held by Supreme Court in the case of M/s.Mediwell Health Care P Ltd., the fulfilment of the conditions of notification 64/88 is to be a continuous one. In the circumstances, the medical equipments imported by them are liable for confiscation under Section 111 (o) of the Customs Act, 1962 and the benefit of the above notification is available to them. The importer is also liable for penalty under Section 112 (a) of the Customs Act, 1962. However, the duty that was paid at the time of import was actually refunded vide R.O. S23/100/92ACC dated 8.10.93. The show cause notice to the hospital was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive years, it was not levied. However, from the said order, it is evident that on the contrary, the adjudicating authority, without levying duty, imposed redemption fine of ₹ 2,77,284/- and further imposed a penalty of ₹ 10,000/-. Against the said order of the adjudicating authority, appeal was preferred to the Commissioner (Appeals), who confirmed the order of the original authority. 6. Aggrieved against the said order of the Commissioner (Appeals), the appellant pursued the matter before the Tribunal. Before the Tribunal, there appears to be a confusion. While dealing with the present issue, the Tribunal relied upon another order passed in respect of the same importer in Final Order No.123/2007 dated 12.2.07 in Appeal No.C-15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was not open to the customs authorities to hold that they were only a diagnostic centre/polyclinic. The Commissioner's finding that no specific register/record was maintained by the appellants was also challenged by counsel who submitted that the Commissioner himself had found that they had furnished details of casualty register. According to learned counsel, the Commissioner's order suffered from infirmities and hence requires to be set aside. It was particularly submitted that the quantum of penalty imposed by him on the appellants was too high. It was argued that in view of the decision of the High Court in Apollo Hospitals' case, the impugned order was liable to be set aside. Learned SDR at the outset submitted that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants did not even have an outpatient department to provide treatment. In respect of in-patients it was found that the minimum of 10% beds was not reserved for patients whose income was less than ₹ 500 per month. Even the Director of the hospital had admitted these facts in his statement. It was also noted by learned Commissioner that the appellants had failed to submit documents/registers to prove their claim with regard to outpatients. The casualty register produced by them did not meet the requirement of free treatment to outpatients. In these circumstances, learned Commissioner rightly held that the benefit of exemption under Notification No.64/88 was not available to the CT scanner with accessories imported by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act. The value of the goods at the time of importation was ₹ 6,93,184/-. That was nearly 15 years ago. It is anybody's guess as to what would be the present market value (PMV) of the goods which have been in constant use by the appellants. After taking these circumstances, we reduce the fine to ₹ 5,000/- (Rupees Five Thousand only). With this modification, the impugned order is sustained and this appeal is disposed of." 8. It is seen from the above order of the Tribunal, the Tribunal has reduced the penalty from ₹ 10,000/- as ordered by the adjudicating authority to ₹ 5,000/-. However, the Department has not chosen to file any appeal against the said portion of the order of the Tribunal reducing t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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