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TMI Blog2015 (11) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... en confiscated but also because the conditions of the notification have been violated and also when the importers have utilised the imported items for their full life?" 2] It is conceded before us that all the questions which have been framed as substantial question of law by this Court and while admitting this Appeal could not have been framed and considered at all. That is simply because the Revenue is aggrieved by the order of the Tribunal passed on the Assessee's Appeal. The Assessee was aggrieved by the order of confiscation of the goods and levy of penalty. The demand for duty was not even confirmed by the Commissioner while adjudicating the show cause notice. That part of order passed by the Commissioner has not been questioned by the Revenue before the Tribunal. In such circumstances, question no.3 is deleted. However, we will note the arguments of Mr. Rao based on question No.3 to support the ultimate finding and conclusion of confiscation and penalty in the Commissioner's order. 3] The facts necessary to decide these questions in brief are that: The RespondentAssessee has a Diagnostic centre. It is the importer in question. It imported the consignment of medical equip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 1.3.88 u/s 112(a) of Customs Act, 1962. c). I further impose a penalty of Rs. 2,96,812/on Dr. M. J. Gandhi, proprietor of M/s. Gautam Diagnostic Centre, Mumbai u/s 112(a) of Customs Act, 1962. d). I caution the DGHS Authorities to be more vigilant while dealing in such type of case in future. The above order is passed without prejudice to any other action or actions likely to be contemplated against the said importers under the provisions of the Customs Act, 1962 or any other law for the time being in force. Sd/ (V. P. SINGH) Commissioner of Customs, ACC, Sahar, Mumbai99." 6] This order was challenged by the Respondent before the Tribunal and the Tribunal has reversed it. In reversing it, the Tribunal relied upon the fact that the importer need not be a hospital so long as it falls within the explanation to the Notification granting exemption from payment of customs duty. Secondly, the Director General of Health Services may have withdrawn the entitlement certificate but that is with effect from 17th December, 1997. The import which has taken place more than 10 years back is, therefore, unaffected by this withdrawal or cancellation. Therefore, the ingredients of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods is not allowed to be collected and recovered. The Commissioner's order does not permit any such course. To that part of the Commissioner's order there is no challenge from the Revenue. The only issue is whether confiscation of the goods was permitted and relying on a subsequent development. The Tribunal has taken a view that the cancellation of the customs duty exemption certificate by the Director General of Health Services is with effect from 17th December, 1997, that cannot be quite effective from a prior date and particularly from the date of importation. The reason for this is that even a Diagnostic Centre falls within the purview of this Exemption Notification by virtue of explanation inserted therein. The Diagnostic Centre may not have a facility to treat the patients and indoors. In that regard the view taken in the case of Surlux Diagnostics Ltd. V/s. Collector of Customs, Bombay reported in 1994 (71) E.L.T. 569 (Tribunal) is relied upon by Mr. Patel. That view has been adopted in the case of Gujarat Imaging & Research Institute V/s. Collector of Customs, Bombay reported in 1996 (85) E.L.T. 97 (Tribunal). The Special Leave Petition from the order passed in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner as also the Tribunal centred around section 111(o) read with section 122 of the Customs Act 1962. The Commissioner held that the confiscation is justified and more so because no duty can be demanded under section 28 as the import is more than 5 years old. That is how only confiscation was possible and imposition of penalty. 10] He, therefore, passed the above order and which came to be challenged before the Tribunal to this limited extent by the Assessee. The Tribunal concluded that if the Director General had withdrawn the certification with effect from 17th December, 1997, then, confiscation by the Customs with effect from 21st January, 1998 was completely uncalled for. The whole emphasis was that the confiscation is because the Assessee was only a Diagnostic Centre and not a hospital. However, there was a certain view held by the Tribunal as well that a pure Diagnostic Centre which may not have any indoor facility would be eligible for benefit of the subject notification. Such being the case, this was not a matter where confiscation and that too after nearly 8 years of the importation was called for. 11] We are of the view that in this limited controversy no wider ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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