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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 ..... er:- (a) to give free treatment, on an average, to at least 40% of all their outdoor patients (b) to give free treatment to all indoor patients belonging to families with an income of less than rupees five hundred per month and to keep for this purpose at least 10% of all the hospital beds reserved for such patients; and (c) to give treatment at reasonable charges, either on the basis of the income of all the patients concerned or otherwise, to patients other than those specified in clause (a) & (b) above. 3. Later, DGHS issued a letter dated 9.11.2000 in Appeal No.C/141/2007 and such other dates in the other appeals withdrew the certificate as cancelled. Pursuant to this, show cause notices were issued to the appellants under section 124 of Customs Act, 1962 alleging violation of condition of notification and proposing to deny the benefit of exemption, demand duty and for confiscation as well as exemption of penalty. The appellant defended the show cause notice and after adjudication, the original authority confirmed the denial of the benefit of notification and thus confirmed the demand of duty besides ordering confiscation of the goods and imposing redemption fine and penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese appeals, in Appeal No. C/141/2007, the ld. Counsel on behalf of the appellant submitted that with regard to the issue whether the condition of charity treatment was fulfilled or not, the Tribunal had earlier remanded the matter to the original authority to give a clear finding whether the appellants have fulfilled the post-import conditions upto 1.3.1994. Against this, Reference Civil Petition No. 26/2003 filed by the Commissioner of Customs (Air) before the Hon'ble High Court of Madras was dismissed on 9.8.2005 holding that the Tribunal has only remanded the matter for verification as to whether the respondents has treated poor patients. Hence in our opinion no question of law raised. Petition is rejected. That therefore, this issue has attained finality. (v) In Appeal No. C/417/2005, the additional contention was put forward that when demand notice dated 11.7.2012 was issued by the department, for payment of the duty and demands in respect of this appeal, the appellant had approached the Hon'ble High Court of Kerala by filing writ petition WP (C) No. 8271 of 2013. The Hon'ble High Court vide judgment dated 29.3.2017 had quashed the demand notice following the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing show cause notice under section 12 of the Customs Act, 1962. 6. Heard both sides. 7. On perusal of the records and from the submissions made from both sides, it is clear that the show cause notice in all the cases have been issued under section 124 of the Customs Act, 1962. As rightly pointed out by the counsel appearing in Appeal No. C/63/2006, it is not clear whether the show cause notice was issued under section124 since the copy of the same is not part of the records. The issue whether the department can demand duty under section 124 of the Customs Act, on identical facts, has been analyzed by the Hon'ble Supreme Court in the judgment of Fortis Hospital (supra). The relevant portion of the order is extracted as follows:- "11. In order to find out as to whether the High Court is right or CESTATs interpretation of the provisions of Section 125(2) of the Act is correct, it would be necessary to peep into the said provision along with Section 124 of the Act. These two Sections are worded as follows : Section 124. Issue of show cause notice before confiscation of goods, etc. - No order confiscating any goods or imposing any penalty on any person shall be made under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andates issuance of the Show Cause Notice before passing any such order and contemplates two actions: first, relating to confiscating of the goods and second, pertaining to imposition of penalty. Pertinently, this action does not deal with payment of import duty at all. 13. It is not in dispute that show cause notice in the instant case was issued under Section 124 of the Act. Once such a show cause notice was issued and as can be seen from the proposed action which was contemplated in this provision (as has been taken note of above), it was also confined to confiscation of the imported machinery and imposition of penalty. Nothing was stated about the payment of duty. However, in spite of the fact that show cause notice was limited to confiscation of the goods and imposition of penalty, the final order which was passed included the direction to pay the customs duty as well. It is clear that when such an action was not contemplated, which even otherwise could not be done while exercising the powers under Section 124 of the Act, in the final order there could not have been direction to pay the duty. 14. Notwithstanding the aforesaid position, as pointed out above, the Department is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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