TMI Blog2014 (12) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... f no duty liability by modification of the order of the Tribunal, in the absence of a demand for duty by the original authority. In such view of the matter, the impugned order passed by the Tribunal deserves to be set aside. Accordingly, substantial questions of law 3 and 4 are answered in favour of the appellant/importer and against the Revenue. - Decidedin favour of assessee. - C.M.A. No. 1087 of 2007 - - - Dated:- 25-9-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. B. Kumar, SC for Mr. Hari Radhakrishnan For the Respondents : Mr. T. Chandrasekaran JUDGMENT (Delivered By R. Sudhakar, J.) This appeal is filed against the Final Order No.246/2007 dated 15.3.07 passed by Customs, Excise and Service Tax Appellate Tribunal, Chennai, in Appeal No.C/253/2000. 2. This Court, while admitting the appeal, framed the following substantial questions of law for consideration :- i) Whether the Hon'ble Tribunal has interpreted the Notification 64/88 Cus dated 01.03.1988 in the right perspective? ii) Whether Sec. 59A of the Customs Act has an overriding effect to the ruling of the High Court? iii) Was the Hon'ble Tribunal correct i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - was payable on the goods in question. In as much as the goods were imported without fulfilment of the conditions of the notification, I hold that the medical equipments viz., 1 No. Hitachi 315 Echo Machine of value ₹ 6,93,184/- are liable for confiscation under Section 11 (o) of the Customs Act, 1962. Accordingly, I order confiscation of the same. However, I allow them to redeem the same on payment of redemption fine of ₹ 2,77,284/- (Rupees Two Lakhs Seventy Seven Thousand Two Hundred and Eighty Four only). I also impose a penalty of ₹ 10,000/- (Rupees Ten Thousand only) on the importer M/s.Vinodhagan Memorial Hospital P Ltd. under Section 112 (a) of the Customs Act, 1962. 5. From a reading of the abovesaid order, what this Court is able to discern is that customs duty, though payable in respect of the goods imported, since show cause notice was issued beyond the relevant period of five years, it was not levied. However, from the said order, it is evident that on the contrary, the adjudicating authority, without levying duty, imposed redemption fine of ₹ 2,77,284/- and further imposed a penalty of ₹ 10,000/-. Against the said order of the adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence requires to be set aside. It was particularly submitted that the quantum of penalty imposed by him on the appellants was too high. It was argued that in view of the decision of the High Court in Apollo Hospitals' case, the impugned order was liable to be set aside. Learned SDR at the outset submitted that this Bench had in the case of Jaya Nursing Home (P) Ltd. - Vs commissioner of Customs, Chennai (2004 (177) ELT 766 (Tri. - Chennai) distinguished Apollo Hospitals' case and held that the provisions of Section 159 A of the Customs Act had overriding effect on the Hon'ble High Court's ruling. Learned SDR also reiterated the findings of the Commissioner. 5. After giving careful consideration to the submissions, we have to reject learned counsel's plea that the demand of duty is not sustainable as long as CDEC issued by DGHS is in operation. It appears from the text of the customs notification that the provisions of this notification are applicable to a hospital equipment, the import of which is approved by the DGHS as essential for use in hospital specified in the table annexed to the notification. As per S. No.1 of the said table, the hospital m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in challenging the confiscation order, nor have they shown that they did not render the goods liable for confiscation. Consequently, the penalty imposed on them under Section 112 (a) of the Act is liable to be sustained. In our view, the quantum of penalty is quite reasonable. The appellants have a grievance regarding the quantum of fine. We find that the lower authorities have imposed a fine equal to duty, which does not seem to be in conformity with the proviso to Section 125 (1) of the Customs Act. The value of the goods at the time of importation was ₹ 6,93,184/-. That was nearly 15 years ago. It is anybody's guess as to what would be the present market value (PMV) of the goods which have been in constant use by the appellants. After taking these circumstances, we reduce the fine to ₹ 5,000/- (Rupees Five Thousand only). With this modification, the impugned order is sustained and this appeal is disposed of. 8. It is seen from the above order of the Tribunal, the Tribunal has reduced the penalty from ₹ 10,000/- as ordered by the adjudicating authority to ₹ 5,000/-. However, the Department has not chosen to file any appeal against the said portion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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