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2015 (4) TMI 309 - CESTAT MUMBAI

2015 (4) TMI 309 - CESTAT MUMBAI - TMI - Rejection of rectification of mistake - benefit of notification No. 64/88-Cus - violation of the post importation condition - Held that:- there is no error apparent on the face of the record in respect of order dated 17-09-2014 passed by us. It is a settled position in law as held by the hon'ble Apex Court in R D C Concrete (India) Pvt. Ltd. [2011 (8) TMI 25 - SUPREME COURT OF INDIA ] re-appreciation of evidence on a debatable point cannot be said to .....

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. Chandrasekharan And Ramesh Nair,JJ. For the Appellant : Mr Prakash Shah, Adv. For the Respondent : Mr A K Singh, Addl Comm (AR) ORDER Per: P R Chandrasekharan: The application for rectification of mistake has been preferred by the appellant, M/s Sunitidevi Singhania Hospital and Medical Research Centre, Thane in respect of Final Order NO. A/1497/14/CSTB/C.I dated 17/9/2014 passed by the Tribunal. Vide the said order, this Tribunal dismissed the appeal filed by the appellant against order dated .....

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uty exemption under the said notification. 2. The ld. Counsel for the appellant submits that there is an error apparent on the fact of the record in the said order passed by this Tribunal. It is pointed out that the appellant, in their appeal memorandum, had clearly stated that the Commissioner of Customs failed to follow the Madras High Court order in the matter of Apollo Hospital reported in [2001 (133) ELT 58] wherein the hon'ble High Court had held that after the rescinding of notificati .....

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fication post 28-2-1994. It is also contended that in Honda Siel Power Products Ltd. [(2007) 213 CTR (SC) 425], the apex Court had held that when a prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. Reliance is also placed on the decision of the hon'ble Bombay High Court in NTB International Pvt. Ltd. [ 2014 (302) ELT 481 (Bom,)] wherein it was held that where the findings of a Tribunal are a res .....

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e Tribunal as contended by the appellant. It is his contention that in para 5.2 of the impugned order, it has been clearly observed that the question of time-bar for demand of duty will not arise as notification 64/88-Cus imposes a continuing obligation on the importer with regard to the provisions of free medical treatment as held by the apex Court in Jagdish Cancer & Research Centre [2001 (132) ELT 257 (SC)]. It is his further submission that the appellant had executed a bond for complying .....

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issions. 4.1 The Customs Duty Exemption Certificate to the appellant to avail the benefit of notification No. 64/88-Cus was issued by the Director General of Health Services subject to the condition that - (i) the appellant undertakes to give free treatment, on an average to at least 40% of the outdoor patients; (ii) to give free treatment to all indoor patients belonging to families with an income less than ₹ 500/- per month and to keep for this purpose, at least 10% of all the hospital b .....

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irement of 40% stipulated in the notification. Similarly free IPD treatment was found to be 1.2%, 0.36% an 0.81% as against the statutory requirement of 10%. The appellant did not produce any account whatsoever with regard to the compliance of the notification for the previous years. These facts of the case are not in dispute. Therefore, the medical equipment imported by the appellant were confiscated for violation of post importation conditions under section 111(o) of the Customs Act, 1962 with .....

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bond at the time of importation while availing the exemption to comply with the terms and conditions of exemption. The said undertaking was not for any particular period or till the rescinding of the notification. The undertaking given is in respect of the goods imported and during the period of its use. Therefore, so long as the goods are in use, the appellant is bound legally to fulfil the terms and conditions of exemption. In Mediwell Hospital and health Care Pvt. Ltd. [ 1997 (89) ELT 425 (S .....

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ast continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that to have imported equipments without payment of customs duty to give free treatment atleast to 40 per cent of the outdoor patients as well as would give free treatment to all the indoor patients belonging to the families with an income of less than ₹ 500/- p.m. The competent authority, therefore, should continue to be vigilant and check whether the und .....

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s duty. Needless to mention the Government has granted exemption from payment of customs duty with the sole object that 40% of all outdoor patients and entire indoor patients of the low income group whose income is less than ₹ 500/- p.m. would be able to receive free treatment in the Institute. That objective must be achieved at any cost, and the very authority who have granted such certificate of exemption would ensure that the obligation imposed on the persons availing of the exemption n .....

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an identical question arose before a Larger Bench of this Tribunal in Bharat Diagnostic Centre [2007 (207) ELT 113 (L.B.)] wherein the issue for consideration whether action taken for violation of conditions after rescinding of notification was valid or not. The said decision also pertained to notification No. 64/88-Cus and the Larger Bench held as follows:- "6.2 The High Court has clearly held that by virtue of Section 159A, introduced on 1 st April, 1994 with retrospective effect from 1 s .....

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