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TMI Blog2014 (12) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 in holding in the appeal preferred by the appellant that the duty demanded is upheld when actually the duty was not demanded even in the order in original? iv) Whether the demand of duty is legally correct?" 3. The case of the appellant is that it imported one Hitachi Model 315 Echo Machine & Accessories valued at Rs. 6,93,184/- vide Bill of Entry No.12770 dated 2.4.92. The medical equipment was allowed clearance provisionally on payment of extra duty deposit of Rs. 2,77,274/- under Provisional Duty Bond S23/100/92ACC pending p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty, I pass the following order :- ORDER I, therefore, deny the benefit of exemption notification to the medical equipments, viz., 1 No. Hitachi Model 315 Echo Machine and accessories of value Rs. 6,93,184/- imported by M/s.Vinodhagan Memorial Hospital P Ltd. Vide B/E No.12770 dt. 2.4.92 and hold that the customs duty of Rs. 2,77,284/- 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 Rs. 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 red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, in para-4 of the order, held as hereunder :- 4. After hearing both sides, we note that a similar case of the same party was disposed of by this Bench as per Final Order No.123/2007 dated 12.2.2007 in Appeal No.C/150/2001. The facts of the present case are similar to those of the earlier case. The demand of duty on the appellants in the earlier case was sustained for the reasons recorded in paragraphs 4 to 6 of the above final order, which are reproduced below :- 4. Heard both sides. Learned counsel submitted that though DGHS who had issued EDEC to the appellants in respect of the medical equipment and subsequently withdrew the certificate, such withdrawal was set aside by the Hon'ble High Court of Madras in Writ Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riding 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 must be certified by the Ministry of Health and Family Welfare to be run or substantially aided by such charitable organisati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein. This liability did not come to an end even when the notification was rescinded inasmuch as Section 159 A of the Customs Act saved departmental proceedings for enforcing the liability under the notification against the hospital as held by this Bench in the case of Jaya Nursing Home case (supra). In view of the continuing nature of the liability under the notification, the demand of duty is not hit by the limitation prescribed under Section 28 of the Customs Act. 7. The Tribunal, on the question of penalty, passed the following order :- "6. The lower authorities have held the goods liable for confiscation under Section 111 (o) of the Customs Act with option for redemption thereof against payment of fine. We find that the appellants ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if a decision is rendered insofar as substantial questions of law Nos.3 and 4, then the questions of law Nos.1 and 2 would become academic. Therefore, the Court is inclined to consider substantial questions of law Nos.3 and 4 alone. 11. The grievance of the appellant, as could be ascertained from the above facts is that, the original authority did not confirm the demand though he held that it was payable, in view of the fact that show cause notice was issued after a period of five years from the relevant date. However, the original authority imposed redemption fine of Rs. 2,77,284/- and penalty of Rs. 10,000/-. It is also pertinent to note that the department did not file appeal against the order of adjudication passed by the original au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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