2018 (8) TMI 1121 - AT - Customs

Tribunal overturns benefit disentitlement, rules confiscation and duty recovery actions unauthorized.

Keshlata Cancer Hospital Pvt Ltd Versus Commissioner of Customs (Import) Mumbai

Keshlata Cancer Hospital Pvt Ltd Versus Commissioner of Customs (Import) Mumbai - 2020 (372) E.L.T. 88 (Tri. - Mumbai) Issues Involved:1. Eligibility for exemption under Notification No. 64/88-Cus dated 1st March 1988.2. Compliance with post-importation conditions.3. Validity of duty recovery under Section 125(2) of the Customs Act, 1962.4. Consequence of failure to produce installation certificates.5. Compliance with conditions of free treatment and reasonable charges.6. Impact of subsequent withdrawal of duty exemption certificate.Issue-wise Detailed Analysis:1. Eligibility for Exemption:The adjudicating authority's decision to disentitle the appellant from the benefits of Notification No. 64/88-Cus was found incorrect. The appellant had cleared the equipment upon import in February 1991 with all necessary documents, qualifying them for the exemption. Alleged failures to comply with post-importation conditions could lead to confiscation but did not affect eligibility at the time of import. There was no allegation of non-eligibility at import, making the finding unsustainable.2. Compliance with Post-Importation Conditions:The adjudicating authority cited multiple failures, including not submitting the installation certificate and not providing evidence of free treatment to patients earning less than Rs. 500 per month. The appellant argued that the conditions were met, and the tribunal found that the adjudicating authority did not provide sufficient evidence to counter the appellant's claims. The tribunal noted that the data provided by the appellant indicated compliance with the condition of providing free treatment to 40% of patients.3. Validity of Duty Recovery under Section 125(2):The tribunal referenced the Supreme Court's decision in Fortis Hospital Ltd v. Commissioner of Customs, Import, which clarified that duty under Section 125(2) becomes payable only if the importer opts to pay the fine and redeem the confiscated goods. Since the appellant did not exercise this option, duty recovery under Section 125(2) was not applicable. The tribunal found the adjudicating authority's reference to Section 12 of the Customs Act superfluous and irrelevant.4. Consequence of Failure to Produce Installation Certificates:The appellant argued that the equipment's installation was supervised by the Bhabha Atomic Research Centre, which was not disputed. The adjudicating authority's reliance on the withdrawal of the duty exemption certificate by the Director General of Health Services did not suggest non-installation. The tribunal noted the absence of a specified timeframe for submitting the installation certificate in the notification and found that the adjudicating authority's demand for the certificate eight years post-import was unreasonable.5. Compliance with Conditions of Free Treatment and Reasonable Charges:The tribunal found no evidence that the appellant charged unreasonable rates or failed to provide free treatment as required. The adjudicating authority did not ascertain the reasonableness of the rates charged or provide contrary evidence to the appellant's records. The tribunal concluded that the appellant fulfilled the condition of providing free treatment to 40% of patients.6. Impact of Subsequent Withdrawal of Duty Exemption Certificate:The tribunal held that the subsequent withdrawal of the duty exemption certificate had no bearing on the eligibility for import at the time. The eligibility for import was determined at the time of import, and the post-importation compliance issues were separate, leading only to potential confiscation, not affecting initial eligibility.Conclusion:The tribunal concluded that the confiscation of goods, imposition of penalty, and recovery of duty were without authority of law. The appeal was allowed, and the tribunal pronounced its decision in court on 14/08/2018.