TMI Blog2015 (11) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... ify for exemption that in this case the Tribunal did not uphold the Commissioner’s view and set aside the adjudication order. We do not find anything erroneous or patently illegal in such a course. It is not perverse either. Given the peculiar facts and circumstances and the long time gap, the Tribunal has taken this view. We do not think that setting aside of the confiscation order and imposition of penalty, in these circumstances, really gives rise to any substantial question of law. - Decided against Revenue. - Customs Appeal No.11 OF 2005 - - - Dated:- 23-1-2015 - S.C. Dharmadhikari And Sunil P. Deshmukh, JJ. For the Petitioner : Mr. A. S. Rao a/w Jitendra B. Mishra For the Respondent : Mr. J. C. Patel a/w Prasad Paranjape a/w Mr. Jas Sanghavi And Ms. Niyati Hakani i/b. PDS Legal ORDER P.C.: In Customs Appeal No.11/2005 it is admitted that the Revenue has challenged the order passed by the Customs, Excise and Service Tax Appellate Tribunal dated 20th August, 2004. The Appeal has been admitted on the following substantial questions of law. That reads as under: (i) Whether in the facts and circumstances of the case, the Tribunal was right in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the certificate issued, namely, Customs Duty Exemption Certificate. That was withdrawn by holding that M/s. Gautam Diagnostic Centre (the importer) was only a Diagnostic centre, not having indoor patient facilities. It, therefore, does not fulfill the conditions stipulated in the Notification dated 1st March, 1988 for availing and retaining the exemption. 5] In view of this letter/communication from the Director General of Health Services, New Delhi, the inquiries were conducted by the Officers of the Customs and imported medical equipments were seized under section 110 of Customs Act, 1962. The seizure is effected on 21st January, 1998. Later on, the statements were recorded and the documents scrutinized. A show cause notice was issued on 19th May, 1998 to Shri M. J. Gandhi, Proprietor of the RespondentAssessee. That came to be adjudicated. Pertinently, that also claimed duty but essentially it was adjudicated for the confiscation and penalty. After giving a hearing to the Respondents, an order was passed by the Commissioner of Customs dated 31st December, 1998. That order and to the extent relevant reads as under: I, therefore pass the following order: a). I co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mport, the authorities are empowered to recall the exemption and claim not only the duty component but resort to all such measures including confiscation of the goods and imposition of penalty. In regard to this, Mr. Rao relies upon several judgments and rendered by this Court and the Hon ble Supreme Court. He relies upon the Notification. He also relies upon the judgment of the Hon ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt.Ltd. V/s. Union of India reported in 1997 (89) E.L.T. 425 and the judgment of the Hon ble Supreme Court in Sri Sathya Sai Inst., High Medi. Sciences V/s. Union of India reported in 2003 (158) E.L.T. 675. Mr. Rao has also relied upon the judgments rendered in further cases including Faridabad CT Scan Centre V/s. D. G. Health Services reported in 1997 (95) 161 and Commissioner of Customs (Import), Mumbai V/s. Jagdish Cancer Research Centre reported in 2001 (132) E.L.T. 257. He submits that there is a recent judgment of the Hon ble Supreme Court rendered in the case of Bharat Diagnostic Centre V/s. Commissioner of Customs reported in 2014 (307) E.L.T 362. Further, reliance is strongly placed on a judgment in the case of Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice, according to the Revenue, a demand was raised and that was on the footing that the Director General of Health Services, New Delhi, by a letter dated 17th December, 1997 withdrew the certificate issued to the Assessee. The withdrawal was on the ground that the Assessee was only a Diagnostic Centre not having indoor patient facility and, therefore, does not fulfill the conditions stipulated in the Notification No.64/88 for availing and retaining the certificate. However, the Bill of Entry is dated 25th July, 1990. The clearance have been effected relying upon the notification of 1988 and the Customs Duty Exemption Certificate issued on 28th December, 1988 and 30th January, 1990. The seizure has been effected in 1998. The statements were recorded and later on the show cause notice came to be issued. The show cause notice was replied and extensively to justify that even a Diagnostic Centre could import the medical equipments. The findings of the Commissioner are that the Customs, Excise and Gold (Control) Appellate Tribunal had earlier held that Diagnostic Centre falls within the purview of the notification granting exemption. The notification specifically sets out facilities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical aid with the assistance of these equipments should be extended and with that purpose and object the conditions have been imposed. The fulfillment of these conditions have to be monitored and that is the duty of the customs authority. With that principle none can quarrel as that binds us. The question is whether the confiscation was justified and after such a long duration? The Tribunal found it to be unjustified simply because the import was sanctioned relying upon the notification and the certification of the Director General of Health Services. That certification enabling the Assessee to claim exemption from customs duty was withdrawn after more than 7 years and 9 years of the Import. That was not effective from a prior date. In such circumstances, it was doubtful as to whether the same could have impacted in any manner the importation already done. In these circumstances and the additional doubt created by the view taken by the Tribunal that even a Diagnostic Centre would qualify for exemption that in this case the Tribunal did not uphold the Commissioner s view and set aside the adjudication order. We do not find anything erroneous or patently illegal in such a course. It ..... 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