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TMI Blog2017 (9) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... later after import. It does not show the period during which the condition was not fulfilled. Hence, in our opinion, the penalty cannot sustain. It is required to be verified whether the show cause notice is issued under section 124 of Customs Act, 1962 - Appeal allowed in part and part matter on remand. - C/417/2005, C/601/2005, C/63/2006, C/141/2007 - Final Order Nos. 41857-41860 / 2017 - Dated:- 22-8-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Ms. Sunita Vinod, Advocate for the Appellant Shri K. Veerabhadra Reddy, JC (AR) for the Respondent ORDER Per Bench The issue in all these appeals being the same, they were heard together and are disposed by this common order. 2. Brief facts of the case are that the appellants in these cases imported various medical equipments by claiming the customs duty exemption under Notification No. 64/88 dated 1.3.1988. To claim the duty exemption, the appellants had to produce a Customs Duty Exemption Certificate issued by the Directorate General of Health Services (DGHS), New Delhi. As per the notification, certain conditions have been stipulated for availing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly with effect from 28.9.1996. On this issue they relied on the judgment in the case of Diwan Chand Satya Pal Aggl. Imaging Research Centre Vs. Union of India 2017 (345) ELT 182 (Del.). (iii) That DGHS had certified that appellants were eligible for exemption in terms of the notification, at the time of import. The said notification was in force from 1.3.1988 to 28.2.1994 (till it was rescinded by Notification No. 99/94 dated 1.3.94). The letter dated 9.11.2000 of DGHS with addendum dated 7.2.2002 intimating the cancellation of the certificate does not specify the period during which the appellant have failed to fulfill the post-import conditions. The cancellation of CDEC issued by DGHS through letter without specifying the period during which the importer has not fulfilled the conditions is arbitrary and cannot be the sole basis for denying the benefit of exemption. Further, that the benefit of exemption cannot be denied after the notification has been rescinded. To support this contention, he relied upon the judgment in the case of Union of India Vs. Seahorse Hospitals Ltd. 2016 (338) ELT 661 (Mad.) and Apollo Hospital Enterprises Vs. Union of India 2001 (133) ELT 58 (Mad.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being a continuous one, the duty demand has been rightly made invoking section 124 of the Customs Act. He submitted that the show cause notice has been issued because DGHS has cancelled the certificate ab initio. Therefore, it is clear that appellant have not complied with the condition at all. Therefore, they are not eligible for the benefit of exemption of customs duty. He also argued that mere non-quoting or mis-quoting of sections will not vitiate the notice issued under section 28 of the Customs Act. There is a time limit of five years to issue notice and if this section is invoked, the same cannot be sustained since the DGHS had cancelled the certificate after a period of more than five years. Therefore, in such a situation, duty can be demanded only under section 124 being a continuous cause of action. The learned AR also argued, in any case, confiscation of the goods has to be upheld and it is for the appellant to exercise their option to redeem the goods or not. He also argued that the penalties may be sustained. He relied on the decision of the Larger Bench of the Tribunal in the case of Bombay Hospitals Trust Vs. Commissioner of Customs 2005 (188) ELT 374 (Tri. LB) wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods. 12. It may be seen from the bare reading of the aforesaid Section that under Section 125(1) of the Act, option is given to the importer whose goods are confiscated, to pay the fine in lieu of confiscation and redeem the confiscated goods. Before this action is taken, show cause notice is to be issued under the provision of Section 124 of the said Act. This provision pertains to confiscation of goods and provides procedural safeguards inasmuch as there cannot be any order of confiscating an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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