TMI Blog2014 (11) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... hajan, Hospital Administrator in his confessional statement recorded on 13/12/1999. Therefore, it is clear that the appellant has not fulfilled the post-importation conditions of giving free treatment to 40% of the OPD patients and 10% of the IPD patients. As regards the reliance placed on a letter dated 16/02/2000 wherein the appellant has claimed to have furnished details of the OPD patients treated freely, we have perused an unsigned copy of the said letter. The said letter also gives certain details of the patient categories who have been given free treatment. However, there is no mention in the said letter as to from where this data have been obtained and what is the basis for these data and therefore, this claim of the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R) ORDER Per: P R Chandrasekharan: The appeal is directed against Order-in-Original No. SIIB/GEN-93/99 ACC S/10-19/2001 SIIB CC-3/2002 ADJN ACC dated 30/01/2002 passed by the Commissioner of Customs, Air Cargo Complex, Mumbai 2. Vide the impugned order, the adjudicating authority has confirmed a customs duty demand of ₹ 95,92,213/- on the appellant, M/s. Sunitidevi Singhania Hospital Medical Research Centre, Thane. He has also ordered confiscation of the goods valued at ₹ 1,07,71,002/- seized under panchanama dated 09/10/2002 (which was released to the appellant for safe custody) subject to payment of a redemption fine of ₹ 1 lakh. He has also imposed a penalty of ₹ 25,000/- on the appellant. Aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er month, Dr. Mahajan submitted that occupancy of the hospital never exceeded 75% on any day and hence 10% of the beds were available to cater to the requirement in this regard. Thereafter, the records of IPD and OPD for the years 1997, 1998 and 1999 which were made available to the Investigating officer's were examined and it was found that free treatment given to the OPD patients accounted for 2.2%, 5.57% and 2.64% for the years 1997, 1998 and 1999 respectively. Similarly, the free IPD treatment was found to be 1.2%, 0.36% and 0.81% for the above mentioned years. Thus it was found that the appellant had not fulfilled the terms and conditions of the Notification 64/88-Cus. It was also noticed that DGHS, who issued the CDEC certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeping 10% of the beds reserved for inpatients whose income is below ₹ 500/- per month, it is submitted that all such patients have been admitted and given the beds and treated free and there is no complaint or resentment by any patient in this regard. It is also submitted that occupancy of the beds in the hospital never exceeded more than 75% of the beds available and, therefore, beds were always available for treatment to inpatients within the limit of 10% as stipulated in the Notification. It is argued that the conditions which are difficult to comply with cannot be imposed for availment of benefit under the Notification. It is also argued that the interest is not applicable under Section 18(3) and 28AB of the Customs Act, 1962. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 327 (Kar.) decided by the hon'ble High Court of Karnataka. The learned AR further submits that since Notification 64/88 imposes a continuing obligation on the appellant to provide free treatment to OPD patients and IPD patients up to the limit specified in the Notification, question of any time-limit would not arise as held by the hon'ble apex Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. 1997 (89) ELT 425 (SC). Therefore, the question of time-bar for demand of duty for violation of post-importation conditions would not arise. The learned AR also relies on the decision of this Tribunal in the case of Dr. Babasaheb Ambedkar Vaidyakiya Pratishthan vs. Commissioner of Customs vide order No. A/581/14/CSTB/C-I dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant is only a mere averment without any basis or supporting evidence. Whereas, as per the records maintained by the appellant in the hospital, which was produced before the investigating authority, it was found that the appellant had not fulfilled the terms and conditions of the Notification 64/88-Cus. It is a settled position in law as held by the hon'ble apex Court in the case of Mysore Metal Industries [ 1988 (36) ELT 369 (SC)] that it is for the person who is claiming the benefit of exemption Notification to lead evidence to show that he is entitled for the exemption. We find that the appellant has completely failed in this regard and the evidence available on records are contrary to the claim of the appellant. 5.2 As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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