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2015 (11) TMI 499 - CESTAT MUMBAI

2015 (11) TMI 499 - CESTAT MUMBAI - TMI - Import of medical equipment - condition of free treatment to outdoor and indoor patients - Violation of condition and benefit of notification 64/88-Cus dated 1/3/1998 - Held that:- On the identical issue there are two conflicting judgments of this Tribunal one is Sunitidevi Singhania Hospital & Medical Research Centre (2014 (11) TMI 738 - CESTAT MUMBAI) wherein division bench of this Tribunal - And another is in case of Sir H.N. Hospital & Research Centr .....

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ion No. 64/88-Cus dated 1/3/1988 during the period after rescission of Notification No. 64/88-Cus vide Notification No. 99/94 dated 1/3/1994, whether importer is entitled to the notification No. 64/88-Cus in respect of import taken place and condition 2(a) and 2(b) has been complied with before rescission of Notification No. 64/88-Cus. - APPEAL NO. C/1030/04 - order No.M/4831/15/CB - Dated:- 27-10-2015 - P S Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Shri T Vishwanathan, .....

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medical equipments cleared by availing the benefit of exemption. Accordingly, I confirm the duty demand of ₹ 4,59,760.40 (Rupees four lakhs fifty nine thousand seven hundred and sixty and paisa forty only) on the importers M/s. Jaslok Hospital & Research Centre, Mumbai in terms of the Notification No. 65/88-Cus dated 1/3/1998. (2) I order confiscation of the medical equipments imported vide B/E No. 1236 dated 18.11.2000 under Section 111(o) of the Customs Act, 1962. However I given an .....

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appellant, M/s. Jaslok Hospital & Research Centre imported medical equipment described in the B/E No. 1236 dated 18/11/1992 as Hanaulex Shadow Less Ceiling Mounted Light Set claiming the exemption under Notification No. 64/88-Cus dated 1/3/1998. The notification granted exemption from the whole of the basic custom duty as well as the additional duty on hospital equipments, the import of which was approved either generally or in each case by the Govt. of India in the Ministry of Health and F .....

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us dated 1/3/1988. Paragraph 2 of the table to the notification is reproduced as under: "All such hospitals which may be certified by the said Ministry of Health and Family Welfare, in each case, to be run for providing medical, surgical or diagnostic treatment not only without any distinction of caste, creed, race, religion or language but also. (a) free, on an average, to at least 40% of all their outdoor patients and (b) free to all indoor patients belonging to families with an income of .....

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e notification, the officers of the Commissioner of Customs, Air Cargo, Mumbai enquired into the matter. On enquiry it was revealed that the appellant have not fulfilled the condition of free treatment to atleast 40% of all their outdoor and free treatment of indoor patients belonging to the families whose income was less than 500/- per month and keeping for this purpose at least 10% of the Hospital beds reserved for such patients. The fact that appellant has not compiled with condition prescrib .....

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003 remanded matter to the original adjudicating authority with some direction for passing denovo adjudication order. The adjudicating authority after considering all the direction by the Tribunal and affording opportunity of personal hearing to the appellant, passed denovo adjudication order which is impugned in the present case. Aggrieved by the impugned order the appellant is before us. 3. Shri T. Vishwanathan, Ld. Counsel for the appellant made submission on various counts. He submits that t .....

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table of the notification. He further submits that appellant have satisfied the condition 2(a) and 2(b) of para 2 of table to the notification no. 64/88-Cus in as much as the Joint Director of Health Services, Mumbai certified that the appellant have satisfied the condition of Notification No. 64/88-Cus. Due to shortage of space appellant could not preserve the basic records, however Joint Director of Health Services has given certificate on the basis of records available at that time with the .....

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tom duty exemption entitlement certificate every year from import of various medical equipment from 1988. In order to ascertain, whether the appellant have provided free of charge basis treatment to atleast 40% of OPD patient. The Joint Director of Health Services, Government of Maharashtra department visits the hospital premises and verify free forms and registers wherein details of patients who fill the free forms are entered and allied records maintained. On verification of this record, Joint .....

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tion basis only. He further submits that as per the impugned order the appellant have not fulfilled the condition during the period 1994-95. The Notification No. 64/88-Cus was rescinded by the Notification No. 99/94-Cus w.e.f. 1/3/1994. As per the Hon'ble Madras High Court Judgment in case of Apollo Hospitals Enterprises Ltd. V/s. Union of India [2001 (133) ELT 58 (Mad)]. After rescission of the notification, the condition provided in the said notification could not be insisted upon to follo .....

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ng the period during the period 1994-95, when the notification was not in force the exemption Notification No. 64/88-Cus availed at the time of import of medical equipment could not be denied. Alternately, he submits that if at all appellant is not extended the Notification No. 64/88-Cus, the goods may be allowed to be assessed in accordance with Notification No. 65/88-Cus dated 1/3/1988, which is unconditional. It is his submission that similar benefit has been extended by this Tribunal in case .....

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As per the contention of the appellant that violation of condition during period 1994-95 when Notification No. 64/88-Cus ceased to exist as the same was rescinded vide Notification No. 99/94-Cus dated 1/3/1994. He submits that this Tribunal on the similar set of facts in case of Sunitidevi Singhania Hospital & Medical Research Centre Vs. C.C., ACC, Mumbai [2015 (317) ELT 81 (Tri. Mumbai)] held that as per the judgment of Commissioner Vs. Jagdish Cancer & Research Centre [2001 (132) ELT .....

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benefit of notification is not admissible to the appellant. 5. We have carefully considered the submissions made by both sides. 6. Before going to other aspect of the matter, we find that the issue is related to fulfillment of condition during the period 1994-95 which is after the rescission of notification 64/88-Cus, whether it will amount to violation of condition and benefit of notification can be denied in such circumstances or otherwise has to be decided first. We find that on the identical .....

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