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TMI Blog2016 (12) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that they have fulfilled the export obligation in the year 1992-93 and 1993-94. Their claim for fulfilling the condition in the year 1992-93 was based on a certificate issued by the State Government and their claim for fulfilling the post importation condition for the period was based on the certain data submitted before the Rosha Committee which was instituted to inquire into fulfillment of the post importation condition in respect of such import, in the case of the appellants, it came to a conclusion that on the basis of test audit of the year 1994-95 that the appellant had not fulfilled the post import conditions. The appellant had imported the goods on 18/11/1992. The same were seized on 24/09/2001 and a show-cause notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 125 (2) of the Customs Act, and the redemption fine cannot be recovered if the appellant do not exercise the option of redemption fine. He argued that the said issue has already covered in the decision in the case of Fortis Hospital ltd. 2015 (318) ELT 551 (SC). Learned Counsel argued that the condition of Notification cannot be invoked after the said notification was rescinded/superseded. He argued that the said notification No.64/88-Cus was rescinded on 01/03/1994. He argued that after 01/03/1994 the conditions under which the goods were imported cannot be enforced. He argued that the Rosha Committee had relied on the data pertaining to the period after 01/03/1994 and therefore, the findings of Rosha Committee cannot be relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to bar the Assistant Commissioner from imposing appropriate penalty. 4. We have gone through the rival submissions. We find that in the case of Mediwell Hospital and Health Care Pvt. Ltd. 1997 (089) ELT 425 (SC). The Hon'ble Apex Court has observed as follows: 12. While, therefore, we accept the contentions of Mr. Jaitley learned senior Counsel appearing for the appellant that the appellant was entitled to get the certificate from Respondent No. 2 which would enable the appellant to import the equipment without payment of customs duty but at the same time we would like to observe that the very notification granting exemption must be construed to cast continuing obligation on the part of all those who have obtained the certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not been discharged they can enforce realisation of the customs duty from them. From the above observation, it can be seen that the obligation cast on the appellant is a continuing obligation and does not get discharged by rescinding of notification. Rosha Committee has found that the appellant have not fulfilled the conditions of the notification for this period 1994-95 and in view of that the benefit of notification cannot be enjoyed by the appellant. As a result, the goods becomes liable to confiscation under Section 111 (o) of the Customs Act. 5. Now the appellant have argued that no duty or redemption fine can be imposed on them if they refused to redeem the confiscated goods. In this regard, we find that the Hon'ble Apex Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not attract Section 28(1) of the Customs Act which covers the cases of duty not levied, short-levied or erroneously refunded, etc. The order for payment of duty under Section 125(2) would be an integral part of proceedings relating to confiscation and consequential orders thereon, on the ground as in this case that the importer had violated the conditions of notification subject to which exemption of goods was granted, without attracting the provisions of Section 28(1) of the Customs Act. A reference may beneficially be made to a decision of this Court reported in Mohan Meakins Ltd. v. CCE wherein it has been observed in para 6: (SCC p.465) "Therefore, there is a mandatory requirement on the adjudicating officer before permitting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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