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TMI Blog2018 (6) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... on of penalties. 2. Learned Counsel for the appellants argued that Notification No. 64/88 dated 1.3.1988 is self contained and in case of violation of conditions stipulated, therein as per clause 4(d), the importer is obligated to pay only an amount equal to the duty leviable on the medical equipments. The notification did not contemplate the levy of penalty or confiscation of goods. She further argued that the redemption fine of Rs. 1 lakh is excessive considering the value of goods at the time of import was Rs. 8,09,714/- and the goods have been used for almost 16 years. He further argued that show-cause notice did not propose to recover duty under Section 125(2) and thus, duty under Section 125(2) of the Customs Act cannot be confirmed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances mentioned in the notification, the imported can be asked to execute a bond as well. In those cases, action can be taken under the said bond when the conditions contained therein are violated Therefore, if the Department wanted the Institute to pay the duty, which may have become payable, it could have taken independent action; de hors Section 124 of the Act, for payment of duly, simultaneously with the notice under Section 124 of the Act or by issuing composite notice for such an action. No doubt, it could have waited for option to be exercised by the Institute under Section 125(1) of the Act as well and in that eventuality, duty would have automatically become payable under Section 125(2) of the Act. But when such an option wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged in the show-cause notice, confirmed the demand under section 125(2) of the Customs Act, 1962, which was not specifically invoked. The reasons for the same are stated in para 13.2 of the impugned order, which reads as under: - "13.2 This argument is not correct because they had given an undertaking to the Customs department to comply with post import condition within such time as allowed by the Assistant Commissioner of Customs failing which they undertook to pay the duty as payable without the exemption. The importer has hardly any defense to prove that the post import conditions of the notification have been complied with. Whatever defense the importer had, are already negated by the Supreme Court in its order dated 16-05-2008 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e referable to sub-section (2) of Section 125 of the Customs Act, 1962 and would not attract Section 28(1) ibid which covers the cases of duty not levied, short levied or erroneously refunded. Since I propose to confiscate the goods under section 111(0) and allow redemption of the goods under section 125(1) and considering the fact that the imported goods have already been used by the importer, the case law will apply squarely." But, it can be seen that the decision of Commissioner in the impugned order was influenced by the decision of Hon'ble Apex Court in the case of Jagdish Cancer & Research Centre - 2001 (132) ELT 257 (SC). 4.2 It is seen that Hon'ble Apex Court in the case of Fortis Hospital Ltd. has specifically observed as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above observation, we hold that the demand can be sustained under Section 28(1) of the Customs Act, 1962 in terms of the decision of Hon'ble Apex Court in the case of Fortis Hospital (supra). 4.4 We find that Hon'ble Apex Court in the case of Pradyumna Steel Ltd. - 1996 (82) ELT 441 (SC) has observed as follows: - 3. It is settled that were mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power. Thus, there is a clear error apparent on the face of the Tribunal's order dated 23-6-1981 Rejection of the application for rectification by the Tribunal was, therefore, contrary to law. The said decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been caused to Respondent No. 1 because of wrong mention of Rule in the show cause notice under which, penalty was sought to be imposed on Respondent No. 1 4.5 In view of the above, we hold that demand of duty can be sustained under Section 28(1) of the Customs Act, 1962, which was invoked in the show-cause notice although ignored in the impugned order on account of mis-interpretation of the decision of Hon'ble Apex Court in the case of Jagdish Cancer & Research Centre (supra). 4.6 The appellants in appeals contended that no market enquiry has been conducted before arriving at the quantum of redemption fine. In these circumstances, we have no option but to set aside the redemption fine imposed and remand the matter to the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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