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2012 (9) TMI 915 - AT - CustomsExemption under Notification 64/88-Cus - Assessee did not provide free treatment to 40% OPD patients during the years 1995 and 1996 - notice gives the ground that “they have not disclosed the details and addresses of the patients treated free in OPD” - Difference of opinion - Majority order - Held that:- Appellant while replying to the notice was very much aware that percentages of patients treated free of cost had to be furnished to prove that the condition in the notification was satisfied and the same was furnished in reply. The defence replies furnished on 5-12-2000 and gist of submissions made on 19-1-2005 make this position very clear. However the appellants in replies to the adjudicating officer have furnished replies with reference to position up to 1994 only and not later. The certificates issued by DGHS at the time of import of the goods are not taken on record. - The letter dated 2-8-2000 addressed by the appellant to DGHS has not been taken on record and the letter dated 3-11-2000 from DGHS stating that the CDECs have been cancelled is not furnished to the appellant. - The issue as to the point of time up to which the continuing obligation shall continue is not examined with reference to the nature of goods imported and the decisions of various Courts on the issue - In the event of the exemption under Notification 64/88-Cus. being denied to them there is a need to examine whether the appellants were eligible for exemption under Notification 65/86 or any other alternate exemption as would have been available and where the eligibility can be determined with reasonable certainty at this point of time. Case should not be remitted back for making enquiries with the police station or for cross-examination of any official from DGHS at this late point of time because it is not the view of any individual officer that matters in such issues but of the organization as reflected in records. The case should be decided on evidence as disclosed by records. - treating 40% of the outdoor patients was a condition not possible to be complied with because adequate number of poor patients did not turn up. The argument is repugnant to common sense. Further the notification did not say that 40% of the patients should be poor and they should be treated free of cost. The condition was only that 40% of the outdoor patients (without mentioning any criterion) should have been treated free of cost. There is no impossibility in complying with this condition. Further it is strange that the appellant hospital did not face such problem before the import of goods but states that they found this condition impossible to be complied with after import of the goods. - Matter remanded back - Decided in favour of assessee.
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