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2016 (6) TMI 1003 - MADRAS HIGH COURT

2016 (6) TMI 1003 - MADRAS HIGH COURT - 2016 (338) E.L.T. 661 (Mad.) - Benefit of Exemption Notification No.64/88, dated 01.03.1988 after repealed by Notification No.99/1994, dated 01.03.1994. - Import of certain sophisticated machines for the Hospital and installation thereof - the appellant / respondent withdrew and cancelled all Customs Duty Exemption Certificate issued to the respondent / petitioner under Notification No.64/88-Cus, dated 01.03.1988 and also rejected the request for issuance .....

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tification No.64/88, dated 01.03.1988, saying that the respondent / petitioner had not complied with the conditions for the subsequent period, namely 1994 to 1998. - Decided in favor of assessee and against the revenue. - W. A. No. 2827 of 2012, M. P. No. 1 of 2012 - Dated:- 22-6-2016 - A. Selvam And P. Kalaiyarasan, JJ. For the Appellant : Mr. A. Kumaraguru, SCCG For the Respondent : No appearance JUDGMENT ( Judgement of the Court was delivered by P. Kalaiyarasan, J) The instant writ appeal ari .....

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of the powers under Section 25 (1) of Customs Act, 1962 and the petitioner sought certificate for exemption of duty under the aforesaid Notification and Customs Duty Exemption Certificate was accordingly, issued after the State Government gave its recommendation. The machines were installed and the authorities issued a certificate of installation, evidencing the installation of the aforesaid machines. Meanwhile, due to financial constraints, there was change of management with new set of promot .....

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otification 64/88 relates to the providing of medical, surgical or diagnostic treatment not only without any distinction of caste, creed, race, religion or language, but also free on average to at least 40% of their outdoor patients and free to all indoor patients, belonging to families with an income of less than ₹ 500/- per month and for keeping for this purpose, 10% of the hospital beds reserved for such patients. The petitioner had complied with these conditions, to the maximum possibl .....

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ntral Government also realised the problem in following the said notification and therefore, repealed the same, by Notification No.99/94, dated 01.03.1994. The petitioner was not required to observe the formalities after the said date. The petitioner had also taken necessary steps to conduct rural medical camps, to bring about the awareness of such facilities among the needy people. 6. On 24.11.1998, a field inquiry was conducted through C.S.U of Trichy Commissionerate of Customs and Central Exc .....

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order on 05.07.1999, holding that the petitioner had failed to fulfil the obligation stipulated under the notification and hence, not eligible to the installation certificates in respect of all the 23 machines and withdrew all the Customs Duty Exemption Certificate already issued, as cancelled. The petitioner was not given a proper opportunity to produce several documents, to show that they were in compliance of the requirements. Therefore, the writ petition has been filed. 9. The learned Singl .....

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nds that as per the Judgment of the Hon'ble Supreme Court in Mediwell Hospital v. Union of India, reported in 1997 (89) ELT 425 (SC), every notification granting exemption must be construed to cast continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and this has been last cite off. 11. No one appeared for the respondent. 12. In the order impugned in the writ petition, the appellant / respondent withdrew and cancelled all Customs Dut .....

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d between 22.02.1989 and 02.04.1990. Admittedly, Notification No.64/88-Cus, dated 01.03.1988 was repealed by Notification No.99/1994, dated 01.03.1994. Therefore, the notification was in force from 01.03.1988 to 01.03.1994. The above Customs Duty Exemption Certificates were all issued by the appellant / respondent to all the 23 equipments well within the period, while notification was in force. 13. As averred in the counter by the appellants / respondents, a field enquiry was conducted through C .....

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e patients were treated in OPD are 20.8% and 0.5% respectively, which are less than the minimum stipulated under the Notification. Therefore, during the inspection conducted on 24.11.1998, non-compliance of conditions as stipulated under Notification No.64/88 was noticed for the years from 1995 to 1998. 14. It is to be seen whether the authorities can enforce the liability after rescission of Notification No.64/88. While considering this, it is appropriate to refer the Supreme Court Judgments : .....

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previous notifications issued on the subject, the effect was to wipe out all tax liability which had accrued under the notifications dated May 23,1977. The High Court held that to hold that the liability was so wiped out would amount to giving a retrospective effect to the notification dated December 29,1977, and as the Legislature had not conferred upon the State Government the power to issue notifications having retrospective effect, to so hold would be to render the said notification void. T .....

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cations dated May 23,1977, until they came into force on January 1, 1978. Further, both Section 3 and Section 5(1) in express terms confer power upon the State Government to issue notifications "from time to time". Section 3 provides that "the State may, from time to time by notifications, declare..." goods liable to purchase tax. Prior to January 1, 1978, the provision to Sub-section (1) of Section 5 provided that "The State Government may, from time to time by notifica .....

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an under Section 5(1) issue a notification and repeal and replace it by another notification enhancing or lowering the rate of tax and similarly it can issue a notification under Section 3 declaring particular goods or class of goods to be liable to tax on the turnover of purchases and subsequently by another notification repeal that notification with the result that the particular goods or class of goods will from the date of such repeal be again liable to pay tax on the turnover of sales. In t .....

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purpose are "to put a stop to; to render superfluous or unnecessary; to make of no effect; to annul; to take the place of (something set aside or abandoned); to succeed to the place occupied by; to supply the place of a thing". Webster's Third New International Dictionary at page 2296 defines the word "supersession" as the "the state of being superseded; removal and replacement". Thus, by using in the notifications dated December 29, 1977, the expression "i .....

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rate of tax, and that notification is later superseded by another notification further enhancing the rate of tax, all tax liability under the earlier notification is wiped out and no tax can be collected by the State Government in respect of any transactions effected during the period when the earlier notification was in force." 16. In State of Rajasthan v. Mangilal Pindwal, reported in MANU/SC/0549/1996, it has been held by the Hon'ble Supreme Court as follows : "As pointed out b .....

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