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TMI Blog2016 (3) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... ay a sum of Rs. 49,13,969/- which comprised duty, redemption fine, interest under Section 28AB of the Customs Act, 1962 ("Act") and penalty under Section 114A of the Act. 2. The background to the petition is that between March 1990 to December, 1992, the Petitioner, which is a diagnostic centre engaged in providing diagnostic services, imported seven consignments of medical equipment for use in the diagnostic centre. On the strength of the certificate issued by the Director General of Health Services (DGHS), the Petitioner availed exemption from payment of customs duty under Customs Notification No.64/88 dated 1st March, 1988. The bills of entries (B/Es) were assessed by the Customs Department and the equipments imported were cleared witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est under Section 28AB of the Act was also imposed. 6. Aggrieved by the above adjudication order, the Petitioner preferred an appeal before the Customs Excise & Gold (Control) Appellate Tribunal (CEGAT) subsequently, re-designated as Customs Excise Service Tax Appellate Tribunal (CESTAT). Among the grounds raised in the appeal filed by the Petitioner before the CESTAT, one related to the nonapplicability of Section 28 AB of the Act as well as Section 114 A of the Act. 7. By an order dated 29th May, 2000, in Diwan Chand Satyapal Agarwal I.R. Centre v. CCE, New Delhi 2001 (136) E.L.T. 1116 (Tri.-Del) the CEGAT allowed the Petitioner's appeal. Specific to the question of penalty and interest, the CEGAT observed as under in para 11 of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner on 4th/5th September, 2001 asking it to deposit "duty demanded, redemption fine, penalty and interest up to the date of payment" in terms of the order dated 30th September, 1999 within ten days. 11. In reply thereto, the Petitioner informed the Department that they were not liable to pay penalty and penal interest under Section 114A and Section 28AB of the Act respectively since the portion of the Commissioner"s order which levied such penalty and penal interest was set aside by the CEGAT and that portion of the CEGAT order was not challenged by the Department before the Supreme Court. 12. The Petitioner also filed IA No. 2 in the disposed of Civil Appeal No.52/2001 before the Supreme Court on 5th December, 2001 seeking a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing Rule DB, the Court passed the following interim order in CM No.5190/2003: "Having heard learned counsel for the parties for some time, we are of the view that the matter requires consideration. Rule D.B. Leave granted to the parties to apply for early hearing. CM No.5190/2003 We have heard learned counsel for the parties. Having perused the orders passed by the Supreme Court in Civil Appeal No.52/2001 and in petitioner's IA No.2/2001 dated 22nd April, 2002 and bearing in mind the ratio of the decision of the Apex Court in COMMISSIONER OF CENTRAL EXCISE Vs. ELEGE EQUIPMENT LTD., (2001) 128 ELT, 52 (SC), we are of the view that it is a fit case where interim relief needs to be granted to the petitioner. We may also note tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for this reason that when the CEGAT by its aforementioned order dated 29th May 2000 set aside the levy of penalty and penal interest on the Petitioner, the Department Revenue did not question that portion of the CEGAT"s order in its appeal before the Supreme Court. The Department was aware that Sections 28 AB and 114 A of the Act could not be made applicable to the Petitioner notwithstanding that the Petitioner may have not conformed to the conditions for availing the exemption under Notification No.64/88. 20. In allowing the appeal of the Revenue by its order dated 21st August, 2001, the Supreme Court referred to its judgment in Jagdish Cancer & Research Centre v. Commissioner of Customs 2001 (132) ELT 257 (SC). A perusal of the said ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STAT against the order of the Commissioner dated 30th September, 1999. 24. However, the Court is unable to appreciate how the Petitioner could possibly have gone before the CESTAT when the order dated 30th September, 1999 of the Commissioner has been upheld by the Supreme Court. The CESTAT would have been bound by the order of the Supreme Court. 25. The limited issue before this Court concerns the applicability of Section 114A and 28AB of the Act to the imports in question made by the Petitioner. In law there is no denial by the Department that the said two provisions did not exist in the statute at the time of import of the seven equipments by the Petitioner. In other words, the Department is unable to deny that neither Section 114A nor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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