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2018 (8) TMI 1121 - AT - CustomsBenefit of exemption N/N. 64/88-Cus dated 1st March 1988 - import of ‘Theratron-Phoenix Cobalt-60 (electro therapeutic apparatus)’ - correctness on the part of the adjudicating authority to disentitle the appellant from the privilege of notification no 64/88-Cus dated 1st March 1988 - Held that:- This is an incorrect finding. The appellant had, at the time of import in February 1991, cleared the said equipment upon presentation of all documents that qualified them to the benefit of the exemption; alleged subsequent failure to comply with post-importation conditions may lead to confiscation for non-compliance without calling into question the eligibility at the time of import. Indeed, there is no allegation of non-eligibility at the point of import and this finding is without sustenance. Confiscation - failure to produce the installation certificate - Held that:- Notification do not specify any time limit within which the installation certificate was to be furnished. In paragraph 4(b), the importer is required, at the time of import, to undertake to produce the prescribed certificate within such time as specified by the Assistant Collector of Customs and in paragraph 4(c) it is enjoined that the importer shall furnish the same - It was only in the show cause notice issued more than eight years after the import that this certificate was called for. The appellant did plead before the original authority that it would be well nigh impossible to secure such a certificate after this lapse of time. Moreover, with the Director General of Health Service having withdrawn the ‘duty exemption certificate’, there was a disclaimer of being obliged to issue such a certificate. The consequence of such withdrawal is an aspect that is moot to the eligibility for import with the privileges under the notification - eligibility at the time of import is clearly distinguishable from the obligation to fulfil post- importation condition with the attendant detriment of confiscation. The certification sought for by the adjudicating authority is clearly not applicable to importer and the non-production thereof is no ground for confiscation or denial of privileges of exemption. Whether appellant was derelict in extending free treatment as prescribed or was charging unreasonable rates? - Held that:- No effort has been made by the adjudicating authority towards ascertainment of compliance of this condition and the rates charged by the appellant were not only not subjected to the test of reasonableness but, more importantly, are entirely unknown. There is no onus on the appellant to negate that which is not alleged in the notice and failure to establish reasonableness of rates cannot be held against the appellant - it is apparent that discarding of record must not be based on supposition but on hard facts. The data of patients furnished indicates that 40% of the patients have been accorded free treatment and, in the absence of contrary evidence, there is no ground to hold that appellant had failed to fulfill this condition. In the absence of evidence of non-compliance on the part of the appellant who had furnished claims of compliance, the confiscation of goods, imposition of penalty and recovery of duty is without authority of law - appeal allowed - decided in favor of appellant.
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