9911796707
TMI Blog2019 (11) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act are concerned we find that both these provisions were not in existence at the time of import. The demand of interest under Section 28AB and imposition of penalty on the importer under Section 114A are not sustainable and need to be set aside - As far as the confiscation of imported goods which were provisionally released and imposition of redemption fine under Section 125 are concerned we find that under Section 111 several types of goods brought into India from a place outside India shall be liable to confiscation - appeal allowed in part. - Customs Appeal No. 205 of 2009, 206 of 2009 - Final Order No: 31015-31016/2019 - Dated:- 5-11-2019 - Hon'ble Mr. P. Venkata Subba Rao, Member (Technical) And Hon'ble Mr. P. Dinesha, Member (Judicial) Mr Karan Talwar, Adv for the Assessee. Mr N. Bhanu Kiran, A.R. for the Respondent. ORDER PER:P.VENKATA SUBBA RAO These two appeals have been filed by the appellant aggrieved by the impugned order-in-appeal Nos 70 71/2008(H-II) Cus dated 28.11.2008. M/s Andromeda Foundation is an importer of medical equipment and Dr Sudhakar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this second round of litigation. Aggrieved by the order of the Addl Commissioner, the appellant appealed before the first appellate authority who by the impugned order upheld the order of the Additional commissioner and rejected the appeal. Hence these appeals. The following issues fall for consideration in this case: 1) Whether the order of the Additional Commissioner upheld by the Commissioner (Appeals) in the impugned order denying the benefit of Notification No. 64/88-Cus dated 01.03.1998 on the goods imported vide bill of entry No. 4061 dated 07.09.1993 and consequent demand of duty of ₹ 7,33,304/- towards customs duty is liable to be upheld. 2) Whether the confiscation of the medical equipment valued at ₹ 6,50,382/- under Section 111(o) of the Customs Act 1962 and an option of redemption on payment of a fine of ₹ 1,00,000/- under Section 125 of the Customs Act 1962 needs to be upheld. 3) Whether penalty of ₹ 7,33,306/- on the importer under Section 114A of the Customs Act 1962 needs to be upheld. 4) Whether demand of interest under Section 28 AB of the Customs Act 1962 on the amount of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity and asserts that the demand of interest and penalties have been correctly imposed. 6. We have considered the arguments of both sides and perused the records. As far as the eligibility of exemption Notification No 64/88 is concerned there is no doubt that the appellant have not been issued an installation certificate by the DGHS and the exemption certificate has also been cancelled. Therefore, they have not fulfilled the conditions of Notification No. 64/88. This Notification gives exemption to hospital equipment imported by specific category of hospitals subject to certification by DGHS. Among the conditions that are to be fulfilled is also a condition of continuous obligation of treating some percentage of their patients free of cost. Several hospitals across the country who availed the benefit of this exemption notification have not fulfilled the conditions. In the present case, the appellant has not even got the DGHS certificate. The non-issue of certificate by DGHS was challenged by them through a writ petition in the Hon ble High Court of A.P. and subsequently before the Hon ble Supreme Court through an SLP. Both the Hon ble High Court of A.P. and Hon ble A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of interest under Section 28AB and imposition of penalty on the importer under Section 114Aare not sustainable and need to be set aside and we do so. As far as the confiscation of imported goods which were provisionally released and imposition of redemption fine under Section 125 are concerned we find that under Section 111 several types of goods brought into India from a place outside India shall be liable to confiscation. C lause (o) of this Section read as follows:- (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed under the non-observance of the condition was sanctioned by the proper officer; It is not in doubt that the goods in question were exempted subject to conditions from the duty under Notification No 64/88-Cus it is not in doubt that the conditions of this exemption notification were not fulfilled by the appellant. It is also not in doubt that the denial of certificate by DGHS which resulted in non-fulfilment of these conditions was upheld in their case by the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty [not exceeding the difference between the declared value and the value thereof or five thousand rupees], whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty [not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees], whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty [not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees], whichever is the highest.] Duty involved in this case was ₹ 7,33,306/- and therefore penalty of ₹ 1,00,000/- imposed on Dr Sudhakar Krishna Murthy who is the Director of the importer firm appears just and reasonable and we find no reason to interfere with the same. 7. In consequence the impugned order is upheld except to the extent of setting aside the demand of interest u ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
