9911796707
TMI Blog2008 (10) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty reduced. X X X X Extracts X X X X X X X X Extracts X X X X ..... under Notification No. 64/88 are co-terminus with the life of the equipments and ceases on destruction of the equipments. (c) He submits that the machinery imported in June, 1990 namely, Cellect 8 was commissioned only in October, 1990 and was found to be unusable after some time; there were several breakdowns and as they could not get it repaired the same was condemned in 1993. Similarly, Blanco Operating Table imported in September 1990 was installed in 1991 and was operational only till March 1994 and same was condemned in 1994. The other equipments, namely, Olympus OES Castro Intestinal Fiberscope Model FIF XQ-29 & Olympus OES Colonoscope Model CF-20L was condemned in Oct. 1999. It was claimed that all the condemned equipments are still lying idle in their equipment yard. He produced certificates issued in Sept. 2008 by the concerned Doctors from the appellant's hospital to this effect. To consider their above claim, if needed, the matter may be remanded to the original authority. (d) The appellant is a charitable organisation and received foreign contribution periodically and purchased the machinery out of such contribution and, therefore, they are eligible for concession u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 64/88 are required to be fulfilled for all times to come? (ii) Whether in the facts and circumstances of the case, it was almost impossible to fulfil the conditions relating to admitting poor families having income of less than Rs. 500/-? (iii) Whether any show cause notice could be issued for violation of conditions of Notification No. 64/88 alleged to have been taken place in the years 1994 to 1998, when the Notification No. 64/88 was not in existence having been repealed vide Notification No. 98/94 dated 1-3-1994 ? (iv) Whether in the facts and circumstances of the case, the starting point of limitation was when equipments were imported on 26-3-90, 10-9-90 and 28-2-1991 and, therefore, demand made vide show cause notice dated 30-3-2000 was barred by limitation under Section 28 of Customs Act, 1962 ? The Hon'ble High Court, framed the following two questions of law for their consideration which are as under: "1. Whether in the facts and circumstances of the case, after recession of earlier Notification dated 1-3-88, vide Notification No. 99/Cust/94 dated 1-3-94 and whether after coming of the New Notification, the respondents were justified for issuance of show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal, we do not wish to express any opinion on any of the points urged on merits either on fads or at law by the parties either way except to take note of the same to show their relevancy and how it arises. Rather we have refrained from doing so else the very purpose of remand would be frustrated causing prejudice to parties, 24. Accordingly and in view of foregoing discussion, we allow the appeal and set aside the impugned order of Tribunal. As directed above, the case is remanded to Tribunal again for deciding the appeal on merits in the light of what is observed supra........." In our opinion, the Tribunal is required to reconsider only the issues raised before the High Court and not to consider other issues which were not agitated before the High Court. The Hon'ble Supreme Court has held in the case of Warner Hindustan Ltd. cited supra as follows: "It is impermissible for the Tribunal to consider a case that is laid for the first time in appeal because the stage for setting out the factual matrix is be fore the authorities below." Similar views have been expressed by the Hon'ble Supreme Court in the case of Paper Products Limited reported in 2007 (214) E.L.T. 161 (S.C.) 6.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the obligation was co-terminus with the destruction of the imported material that is to say that unless the hospital equipment imported under exemption Notfn. No. 64/88 was destroyed under the supervision of Customs liability continued and maintenance of records was essential." In this case, as we already observed the plea of condemnation need not be looked into by us as the same relates to a question of fact which has been raised for the first time before us and the same had not been raised before the authorities below. Further, the claim about condemnation based on the certificates issued by the Doctors in September 2008, cannot be equated as destruction in presence of Customs officers which was the basis for relying on the decision in the above case. 6.5 Regarding the time-limit, it is to be noted that in this case the show cause notice has not been issued under Section 28 for demand of duty. The show cause notice has been issued for the violation of the condition of Notification No. 68/88 which casts continuing obligation on the appellant. In the case of C.C. (Import), Mumbai v. Jagdish Cancer & Research Centre - 2001 (132) E.L.T. 257 (S.C.) it has been held as follows: "1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (S.C.) = 2003 (59) RLT 957 (SC) relates to the requirement of advertising in News papers etc. about the facility of free treatment which modified the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care v. UOI cited supra. However, this issue may not be relevant in this case as the certificate by the DGHS stands withdrawn. 7. From the above, the following emerge: (a) The conditions of the Notification 64/98 cast continuing obligation which is co-terminus with the life of the equipments imported. The obligation relating to past imports under the Notification No. 64/88 cannot be wiped out by the rescinding notification. (b) The conditions of the Notification are not fulfilled and the demand of duty for violation of the end use conditions of the notification is not subject to the period of limitation under Section 28 of the Customs Act. Confiscation is to be upheld. Penalty is also warranted. (c) When the goods are confiscated and allowed redemption, the duty in respect of the goods imported and used in violation of the conditions of the Notification is payable irrespective of whether the goods are redeemed or not. Duty demand is upheld. (d) Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
