TaxTMI 
TaxTMI 
TaxTMI 
2001 (8) TMI 113
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....ent under the aforesaid notification exempted all apparatus and appliances etc. as hospital equipments essential for use in any hospital on being satisfied that it would be necessary in the public interest to do so. It is however, subject to certain conditions which have been specified in the said notification as under :- All such hospitals which may be certified by the said"2. Ministry of Health and Family Welfare, in each case, to be run for providing medical, surgical or diagnostic treatment not only without any distinction of caste, creed, race, religion or language but also, - (a) free, on an average, to at least 40 per cent of all their outdoor patients; and (b) free to all indoor patients belonging to families with an income of less than rupees five hundred per month, and keeping for this purpose at least 10 per cent of all the hospital beds reserved for such patients; and (c) ............................................................" Condition No. 4(iii) reads as under : - "4. Any such hospital which is in the process of being established an....
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....ing reliance upon a decision of this Court in M/s. Mediwell Hospital and Healths Care Pvt. Ltd. v. Union of India, 1997 (89) E.L.T. 425 (S.C.) = (1997) 1 SCC 759, it has been found that providing free treatment in terms of the Notification is a continuing obligation, therefore, limitation as provided under Section 28(1) of the Customs Act would not come into play. By order of the Adjudicating Authority the goods imported were confiscated under Section 111(o) of the Customs Act with an option to the Centre to redeem the same under Section 125(2) of the Customs Act on payment of fine of Rs. 50,000/-. A penalty of Rs. 5,000/- was also imposed on taking a lenient view, since it was found that full duty had become payable by the importer. 6.The Centre preferred an appeal against the order passed by the Commissioner of Customs (Import). The CEGAT in appeal, also held that conditions of the Notification relating to providing free treatment were violated. Regarding Condition No. 4(iii), it has been found that its compliance by Centre was not required. It has, however, been found that Section 28(1) of the Customs Act was involved and Assistant Commissioner (Customs) was not the "proper off....
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.... has been demanded by the notice in this case. Therefore, it is submitted on behalf of the Centre that demand of customs duty and the order for payment of the same is relatable to only Section 28(1) of the Customs Act, as also found by the CEGAT. That being the position, the notice was beyond time and not by a "competent officer" authorised to issue the same. The argument, as advanced, though seems to be attractive but on scrutiny, we find no merit in it. Section 124 reads thus :- "124. Issue of show cause notice before confiscation of goods, etc.- No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penally mentioned therein; and (c) is given a reas....
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....r 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. A reference may beneficially be made to a decision of this Court reported in Mohan Meakins Ltd. v. Commissioner of Central Excise, Kochi, 2000 (115) E.L.T. 3 (S.C.) = (2000) 1 SCC 462 wherein it has been observed in Para 6 ".…. Therefore, there is a mandatory requirement on the adjudicating officer before permitting the redemption of goods, firstly, to assess the market value of the goods and then to levy any duty or charge payable on such goods apart from the redemption fine that he intends to levy under sub-section (1) of that section." In this view of the matter the objection raised by the Centre that Section 28 of the Customs Act would be attracted is not sustainable. 12.The next question which falls for consideration is, as to whether or not a new ground or case for confiscation has been carved out as found by the CEGAT. Acc....
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....hat on an average, at least 40 per cent of all outdoor patients should be provided free treatment. It is, thus, at least 40 per cent or may be above. It is submitted that condition nowhere indicates that within what period, the prescribed percentage is to be achieved. It is submitted that it should be during the life of the equipment imported. Thus, shortfall of particular year may be made good in the following year. We are not impressed by this argument. It would, not at all, be necessary to prescribe any period to achieve the given percentage of patients treated free. It should generally be all through the period. It being at least 40 per cent, there is hardly any occasion to say that in case there is more than 40 per cent in a given period, that may make good the deficiency in the previous or the following year. In any case, over and above all, it has not been in dispute that the Centre did not have inpatient facility. According to the condition of notification 10% of total beds in hospital are to be kept reserved for patients of the families having an income of less than Rs. 500/- per month. The case of the Centre, in this connection, is that they had an arrangement with anothe....