TaxTMI 
TaxTMI 
2008 (10) TMI 218
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....ed Rs. 4,96,838/- on 23-6-90, goods valued Rs. 5,47,134/- on 10-9-90 and goods valued Rs. 4,52,216/- on 28-2-91). They availed the benefit of Notification No. 64/88-Cus. dated 1-3-88 after producing the Customs Duty Exemption Certificate from DGHS as a Hospital covered under category 2 referred to in Table annexed to the Notification. The total duty foregone amounted to Rs. 15,57,958/- (b) As per the condition of the Notification, they were required to provide free treatment at an average of 40% of all the outdoor patients and free treatment to all indoor patients having income less than Rs. 500/- and to keep for this purpose at least 10% of all the hospital beds reserved for such patients. (c) The said post import condition was found not fulfilled. The officers detained the goods in 1999 and commenced investigation. Show cause notice dated 30-3-2000 was issued proposing confiscation of the detained goods and proposing demand of duty foregone on the ground that the conditions of the Notification were not fulfilled. (d) The original authority vide his order dated 21-8-03 ordered confiscation of the goods but allowed redemption on payment of fine of Rs. 3,00,000/- and also ordered....
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....emanded 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 under para 3 of the Table to the Notification. They are also eligible for benefit of Notification No.138/88-Cus., dated 1-3-88. 5. The learned DR makes the following submissions: (a) The remand order of the Hon'ble High Court is for considering the four points raised before the Hon'ble High Court by the appellant. It is not an open remand. The new plea that the goods were condemned way back is question of fact and the same should not be permitted to be raised at this stage. He, in support of this submission, relies on the decision of the Hon'ble Supreme Court in the case of Warner Hindustan Ltd. - 1999 (113) E.L.T. 24 (S.C.). He also submits that the order of the Hon'ble High Court has clearly recorded that "these equipments are being used in the hospital since installation by the appellant". Under these circumstances, they should not be permitted to raise such fresh question of fact before the Tribunal. (b) The issue relating to eligibility of 138/88....
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....ircumstances 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 notice and asking the appellant for payment of customs duty? 2. Whether under the facts and circumstances of the case the said show cause notice was barred by limitation under 5.28 of the Customs Act"? The Hon'ble High Court set aside the order of the Tribunal and remanded the matter to the Tribunal with following directions and comments: "5 ....................It 15 not in dispute that these equipments are being used in the hospital since installation by the appellant. 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 Tribunal so was the case in relation not other 3 submissions taken note of supra. In our considered view, these questioning really arise for consideration and goes to the root of the case. Equally true is that since the s....
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....ecause 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 We find that the appellant obtained a certificate from the DGHS and produced the same at the time of clearance of the imported goods. Subsequently, for violation of the conditions of the certificate the same has been withdrawn as cancelled by the DGHS authorities vide their order dated 21-3-2001. We have not been shown that the appellant had filed any appeal against the said order of the DGHS cancelling the certificate. As a result, the condition of the Notification is not satisfied ab initio. 6.3 In the earlier order, the Tribunal has clearly held that the applicant/appellant is not eligible for the benefit of the Notification in terms of para 3 to Table annexed to the said Notification. This issue was not agitated before the High Court. Even otherwise, we do not find merit in their claim as no new submissions having a bearing on this issue have been made. It has also not been shown to us that they have made any application to DGHS for issuance of ce....
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....n 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: "11 ..............A reading of sub-sections (10) and (2) of Section 125 together makes it clear that liability to pay duty arises under sub-section (2) in addition to the fine under sub-section (1). Therefore, where an order is passed for payment of customs duty along with an order of imposition of fine in lieu of confiscation of goods, it shall only be referable to sub-section (2) of Section 125 of the Customs Act. It would not attract Section 28(1) of the Customs Act which covers the cases of duty not levied, short levied or erroneously refunded etc. The order for payment of duty under Section 125(2) would be an integral part of proceedings relating to confiscation and consequential orders thereon, on the ground as in this case that the importer had violated the conditions of notification subject to which exemption of goods was granted, without attracting the provisions of Section 28(1) of the Customs Act.........." 6.6 It has also been further held by....