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TMI Blog2015 (11) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... on of notification is not required to be fulfilled. - Since there are conflicting decisions in the issue in the case registry is directed to place this matter before the Hon'ble President for constituting Larger Bench for answering the question:- In case of non fulfillment of condition 2(a) and 2(b) of the table of the Notification No. 64/88-Cus dated 1/3/1988 during the period after rescission of Notification No. 64/88-Cus vide Notification No. 99/94 dated 1/3/1994, whether importer is entitled to the notification No. 64/88-Cus in respect of import taken place and condition 2(a) and 2(b) has been complied with before rescission of Notification No. 64/88-Cus. - APPEAL NO. C/1030/04 - order No.M/4831/15/CB - Dated:- 27-10-2015 - P S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital Research Centre, Mumbai under Section 112 (a) of the Customs Act, 1962. 2. The facts of the present case is that appellant, M/s. Jaslok Hospital Research Centre imported medical equipment described in the B/E No. 1236 dated 18/11/1992 as Hanaulex Shadow Less Ceiling Mounted Light Set claiming the exemption under Notification No. 64/88-Cus dated 1/3/1998. The notification granted exemption from the whole of the basic custom duty as well as the additional duty on hospital equipments, the import of which was approved either generally or in each case by the Govt. of India in the Ministry of Health and Family Welfare of by the Director General of Health Services (DGHS) of the Government of India as essential for use in any hospi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry it was revealed that the appellant have not fulfilled the condition of free treatment to atleast 40% of all their outdoor and free treatment of indoor patients belonging to the families whose income was less than 500/- per month and keeping for this purpose at least 10% of the Hospital beds reserved for such patients. The fact that appellant has not compiled with condition prescribed in the notification is base don the Rosha Committee report, according to which the appellant have not fulfilled the condition during year 1994-1995. After investigation a show cause notice dated 22/3/2002 was issued proposing to demand of custom duty, to confiscate the medical equipments by denying Notification No. 64/88-Cus. On Adjudication the proposal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the basic records, however Joint Director of Health Services has given certificate on the basis of records available at that time with the appellant, therefore certificate of Joint Director of Health Services is sufficient evidence to prove that appellant have complied with the condition 2(a) and 2(b) of table to the notification. He further submits that records for the period 1994-95 furnished by the appellant to Shri Anantharaman, member of Rosha Committee on 27/8/1998 and same was not returned by Rosha Committee for the reason that Rosha Committee has been dissolved. He submits that appellant have been applying for obtaining custom duty exemption entitlement certificate every year from import of various medical equipment from 1988. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Sir H.N. Hospital Research Centre V/s. Commr. Of Cus. (ACC), Mumbai [2011 (264) E.L.T. 65 (Tri. - Mumbai)] it was held that department has no jurisdiction to proceed against the assessee in terms of Notification No. 64/88-Cus on the ground that Hospital committed breach of condition of the notification post 28/2/1994. For this reason also even if the condition is not fulfilled during the period during the period 1994-95, when the notification was not in force the exemption Notification No. 64/88-Cus availed at the time of import of medical equipment could not be denied. Alternately, he submits that if at all appellant is not extended the Notification No. 64/88-Cus, the goods may be allowed to be assessed in accordance with Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra). In view of this settled legal position even though non-fulfillment of condition is after rescission of the notification, benefit of notification is not admissible to the appellant. 5. We have carefully considered the submissions made by both sides. 6. Before going to other aspect of the matter, we find that the issue is related to fulfillment of condition during the period 1994-95 which is after the rescission of notification 64/88-Cus, whether it will amount to violation of condition and benefit of notification can be denied in such circumstances or otherwise has to be decided first. We find that on the identical issue there are two conflicting judgments of this Tribunal one is Sunitidevi Singhania Hospital Medical Research ..... X X X X Extracts X X X X X X X X Extracts X X X X
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