TMI Blog2000 (5) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... , allowed to redeem the goods on payment of redemption fine of Rs. 2 lakhs. A Customs duty demand of Rs. 14,80,943/- along with interest at the rate of 20 % per annum from the date of clearance of the goods till the date of payment of duty under Section 28AB was also confirmed. Apart from these, a penalty of Rs. 32,47,446.00 was also imposed under Section 114A of the Customs Act, being the equal amount of duty of excise determined under Section 28(2) and 28AB of the Customs Act. The appellants are challenging the said order in the present appeal. 2. Facts : The 7 items of hospital/medical equipment were imported under seven Bills of Entry between 21-3-1990 and 15-12-1992. The total assessable value thereof was Rs. 19,31,075/- having a dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r fulfilling the conditions specified in the Notification in respect of consignments imported by them, the question of the Department seeking to enforce the bond did not arise. Since the show cause notice had been issued under Section 28, which was subject to time bar, the Commissioner could not overcome the time limit of five years as provided therein by purporting to enforce the bond in terms of Notification No. 64/88. As regards the reliance placed by the Commissioner in the impugned order on the Supreme Court decision in the case of Mediwell Hospital Health Care Pvt. Ltd. v. UOI [1997 (89) E.L.T. 425 (S.C.)] ld. Consultant submitted that the said judgment had only stated that if the conditions of the Notification are not fulfilled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked. In the instant case, the show cuase notice having been issued beyond the period of 5 years provided in Section 28, the show cause notice itself had become void and any determination of duty under Section 28(2) without jurisdiction. As the entire proceedings were thus without jurisdiction, neither the order of confiscation nor the redemption fine of Rs. 2 lakhs were sustainable. Ld. Consultant therefore, prays for setting aside of the impugned order. Ld. Consultant also relied on the Tribunal decision in Jagdish Cancer and Research Centre v. CCE Mumbai [2000 (117) E.L.T. 97] in which the Tribunal had held that a notice issued by Assistant Commissioner invoking the extended period under the proviso to Section 28(1) was without juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate of exemption to ensure that the obligation imposed on the person availing of the exemption Notification will carry out the obligation and where the obligations have not been discharged he can enforce the realisation of the customs duty from the importer. Ld. JDR therefore, submitted that the limitation under Section 28 would not apply in the present case. In this connection, he also referred to detailed discussion on the point and the case law referred to in the impugned order. 8. As regards the liability to confisction of the imported goods under Section 111(o) and penalty under Section 112, ld. JDR reiterated the finding in the impugned order and referred to the Apex Court decision in MCTM Corpn. case reported in AIR 1966 SC 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to Section 28(1), we find that the Tribunal s decision in Jagdish Cancer and Research case (supra) supports this contention. In the said case a notice issued by the Assistant Commissioner invoking the extended period under proviso to Section 28(1) was held to be without jurisdiction since the Board had not authorised the Assistant Commissioner to issue a show cause notice for the extended period. 10. As regards the confiscation of the equipment and the imposition of redemption fine, the appellants have not disputed the fact that the conditions relating to free treatment of persons below the prescribed monthly income had not been complied with. Since Section 111(o) makes contravention of the provisions of the Act liable to confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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