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TMI Blog2007 (9) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal disposed of the appeal and the fact that there has been no finding at all by any of the authorities on any of the issues urged, 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 - 1230 of 2005 - - - Dated:- 3-9-2007 - A.M. Sapre and Manjusha P. Namjoshi, JJ. [Judgment per : A.M. Sapre, J.]. - This is an appeal, filed by Assessee under Section 130 of the Customs Act against an order dated 12-10-04 passed by Central Excise and Service Tax Appellate Tribunal (for short hereinafter referred to as "Tribunal") bearing number 699/04-NR.C/in C/appeal No. 509.03/NB(C). 2.In order to appreciate the issue involved which arise out of Customs Act and relates to effect and interpretation of 2 notifications issued under the Customs Act and urged in this appeal, it is necessary to take note of the undisputed facts in brief infra. 3.The appellant is a charitable Trust registered as such under the M.P. Public Trust Act. It is running a hospital by and under the name "Choithram Hospital and Research Centre" at Indore since 1979. 4.On 1-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to him necessitated for issuance of show cause to the appellant. The show cause proceeded to give details of information collected by the department in their inspection in respect of the working of appellant's hospital. The show cause then in para 21 called upon the appellant on the basis of information so collected to show cause as to why the entire custom duty amounting to Rs. 15,57,958/- payable on the medical equipments imported by the appellant in the year 1990-91 (as referred supra) be not recovered along with interest and penalty in accordance with the provisions of Customs Act from the appellant. In substance, thus, the show cause notice was founded on the allegations that appellant was not eligible to claim any exemption from payment of customs duty on these medical equipments and in any event, appellate having not complied with the conditions of exemption notification required for claiming exemption nor ensuring its continuous observance after their installation as provided in notification, they have rendered themselves liable to pay whole custom duty on the equipments. 8.The appellant on receipt of the show cause filed their reply (Ann. A-l). In substance, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 130 of Customs Act. This appeal was admitted for final hearing on following 2 substantial questions of law : Whether in the facts and circumstances of the case, after"1. 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 notice and asking the appellant for payment of customs duty ? Whether under the facts and circumstances of the case the2. said show cause notice was barred by limitation under S. 28 of the Customs Act." 11.Heard Shri G.M. Chapherkar, Sr. Advocate with Shri S. Kohli, Advocate for appellant and Shri V. Zelawat, Asstt. Solicitor General of India for respondent. 12.Learned Counsel for the appellant while assailing the legality and correctness of the impugned orders essentially made four submission. In the first place and rather with vehemence as one of his main contention, learned Counsel contended that the very issuance of show cause notice on 30-3-2000 (Ann. A-16) by Commissioner demanding customs duty on the medical equipments imported by the appellant on the strength of exemption notification 64/88 (An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be exercised because it does not exists. 14.In the third place, learned Counsel contended that assuming that Commissioner had power to issue show cause notice even then the same could be issued only for the period and during the period when exemption notification was holding the field i.e. when notification was in force up to 1-3-94. In other words, the submission is that Commissioner could only examine the so called breaches of non-compliance of exemption notification from the date of installation of equipments till 1-3-94 i.e. so long as exemption notification was alive but not thereafter i.e. not after 1-3-94. Learned Counsel urged that when the exemption notification was rescinded w.e.f. 1-3-94 then it died its own death on 1-3-94 thereby not empowering the authorities to initiate any action against the appellant for the period after 1-3-94 onwards. It is, therefore, bad in law on this ground as well. 15.In the fourth place, learned Counsel contended that impugned show cause which was issued on 30-3-2000 is barred by limitation as provided by Section 28 of Customs Act and hence liable to be quashed on this ground also. In other words, the submission is that impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 675 (S.C.); Apollo Hospitals Enterprise Ltd. v. Union of India reported in 2001 (133) E.L.T. 58 (Mad.); Kolhapur Canesugar Works Ltd. Other v. Union of India Other reported in 2000 (119) E.L.T. 257 (S.C.) = (2000) 2 Supreme Court Cases 536 and General Finance Co. and Another v. Assistant Commissioner of Income Tax reported in Income Tax Reports 2002 (Vol. 257) Page 338 Supreme Court contended that impugned action taken by Revenue against the appellant is in accord with law laid down by Supreme Court in the case of Mediwell and other cases referred supra and hence impugned action be upheld by dismissing the appeal filed by appellant. 18.Having heard the learned Counsel for the parties and having perused the record of the case, we are inclined to allow the appeal and in consequence while setting aside of the impugned order, remand the case to Tribunal for again deciding the appeal on merits as indicated infra. 19.The first question as to whether Commissioner, Customs had jurisdiction to issue impugned show cause notice on 30-3-2000 after the exemption notification was rescinded w.e.f. 1-3-94 by Notification No. 98/94 was admittedly not raised by the appellant before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew the provisions of Section 130(6) of the Act, we heard the appeal on all points at length for deciding the appeal itself yet in the facts emerging from the record of the case and the casual manner in which the Tribunal disposed of the appeal and the fact that there has been no finding at all by any of the authorities on any of the issues urged, we consider it proper to remand the case to Tribunal for deciding the appeal filed by the appellant on merits on all the four points urged by appellant which are taken note of supra. Since, all the four points urged are involved in the case and does arise out of the controversy, it is necessary for the authorities to give finding these points. It is really unfortunate that all the four points remained answered till the stage of Tribunal though otherwise alive to the controversy involved in the case. In our view, it cannot be said to be a fair judicial trial either way for both parties. If issue whether of law or fact arise then it must be dealt with at all levels by the respective authorities by giving finding one way or other. If not raised at a proper stage but raised a later stage then also the same can be dealt with either at that sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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