TMI Blog1999 (12) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were liable to confiscation under Section 111(o) of Customs Act. Jurisdictional authority was requested to seize the same. It was found by it (jurisdictional authority) that the imported goods was found in the treatment room of the Importer s premises. Under Section 110 of the Customs Act it was seized with incriminating documents on 22-1-1998 under a panchnama, and was handed over to the importer for safe custody. Statement of authorised signatory cum liaison officer Shri G. Ramu was recorded on 16/1/98. After investigation show cause was issued on 7-3-1998 to the appellant calling upon them to show cause as to why Customs duty of Rs. 64,93,598/- should not be demanded from them, and seized goods should not confiscated under Section 111(o) of Customs Act and why penalty should not be imposed under Section 112(a) of the same Act, as they have failed to comply post importation conditions of the above notification viz. (1) production of installation and hospital running certificate; (2) providing free treatment on an average to atleast 40% of their out door patients, (3) keeping at least 10% of the hospital beds reserved for indoor patients having income of less than Rs. 500/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as indoor patients are concerned, appellant centre has no such facilities. It has an arrangement with sister concern viz. CDA Hospital providing in patient facility of reserving beds to such indoor patients belonging to the family with an income of Rs. 500/- p.m. It is located in close proximity. The said facility is always provided, whenever required. The Commissioner has not properly appreciated the true scope of notification. He has erred in taking the period only upto 1996, that too without taking into account the actual percentage of out door patients treated free. He ought to have ascertained the residual life of the equipment and given a finding whether it is possible for the appellant to comply requirements of the notification within the residual life of the equipment, which is the true scope of notification. Para 16 in 1994 (71) E.L.T. 569 in the case of M/s. Surlux Diagnostics Ltd. v. Collector of Customs interprets the scope of Notification 64/88. In 1996 (85) E.L.T. 97 in the case of Gujarat Imaging and Research Institute v. Collector of Customs, Bombay relying the above decision has held that no particular span of period has been provided in the notification, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification. Paras 12 and 13 of Supreme Court judgment referred above is very clear in that regard, and even has gone to the extent of calling upon all the beneficiaries should notify in the local newspapers the total No. of patients they have treated and 40% of them are the indigent patients below the stipulated income of Rs. 500/- with full particulars and address thereof which would ensure that the condition to treat 40% of the patients free of cost would continuously be fulfilled. In the event of default there should be corrective official action to perform the obligation undertaken by all such persons. Order of Apex Court should be read as a part of notification which had been interpreted to mean that there is no need to have a specific period for compliance of conditions to the said notification. It is a continuous obligation for all times to come. 4. It is further urged by JDR that the conditions of notification are not fulfilled by the appellant even as per the say of its authorised signatory and liaison officer Shri G. Ramu, which is faulty. Break statement chart now produced by appellant through their consultant was not before the Commissioner. Admittedly appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retation of condition of the notification but whether a certificate issued by DGHS involving all the importer is sufficient in terms of the notification in question. Paras 15 to 17 of the order in that case show that the appeal was allowed in view of the clarification issued by the Office of DGHS by Dr. Vishwakarma and another Joint DHS, Bombay. In this case no such certificate is produced by the appellant. So the ratio of judgment in Surlux case cannot be applied to this case. In case of doubts benefit should go to Revenue as per the Supreme Court judgment in 1994 (73) E.L.T. 769 in the case of Novopan India and 1995 (75) E.L.T. 13 in the case of Liberty Oils Mills. 5. Point for consideration is whether the impugned order is liable to be disturbed as contended by the appellant? We answer it in the end of para 9. 6. Perused the show cause notice cum duty demand dated 9-3-1998 issued by the Assistant Commissioner of Customs VB, duty demanded under Section 28(1) of Customs Act, under Section 111(o), 112, 114A of Customs Act, calling upon the appellant to show cause to the adjudicating authority viz. Commissioner of Customs (Import), Customs House, Bombay as to why (a) Customs dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.) in the case of Ranadey Micronutrients v. C.C.E. is relevant, which states as follows : Departmental clarifications - circular issued by the CBEC object and validity - Such circulars are meant for adopting uniform practice and binding on the officers of the revenue department (para 14). The learned JDR has not controversed this submission. So under these circumstances the contention of appellant has to be and is accepted. 8. Now coming to the merits of the case, the grounds for confiscation of the equipment under Section 111(o) of Customs Act, as per the show cause notice in para 3 is that since the importers failed to produce the installation certificate in terms of para 4(iii) of the said Notification 64/88-Cus., dated 1-3-1988 and therefore subject goods are liable to confiscation under Section 111(o) of Customs Act . This is the only ground on which confiscation of the seized equipment is based, as contended by the appellant. In the impugned order of the Commissioner at para 11 it is observed that insofar as the installation certificate is concerned, importers contention that since hospital was not category (iv) hospital mentioned in Notification No. 64/88 no such insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer . From the above, material it is crystal clear that show cause notice spells out other conditions violation only for liability to pay customs duty exempted under the notification and the only ground for confiscation is non-production of installation certificate, which is conceded as not required in the impugned order, as contended by the appellant and as mentioned in para 3 of show cause notice. In the impugned order new case is made out from the show cause notice as violation of other conditions also make the goods liable for confiscation under Section 111(o) of Customs Act, which is correct as per the above notification. But, it cannot be upheld for want of specific allegation in para 3 of show cause notice by which liability to confiscation is alleged and the resultant action of seizure by the jurisdictional Customs officers in Hyderabad. 9. Now coming to the violation of condition of notification regarding the treatment of 40% of the total number of outpatients free of cost and reservation of 10% of bed to indoor patients of the family of less th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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