TMI Blog2018 (8) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... ven after importation and clearance of the goods. In the said judgment they have also held that duty in terms of section 125(2) of the Customs Act, 1962 is also payable in case Appellant opts to redeem the confiscated goods. Appeal dismissed - decided against appellant. - APPEAL No. C/609/2010 - A/87045/2018 - Dated:- 27-6-2018 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri T. Viswanathan, Advocate, for appellant Shri S.R. Nair, E.O. (AR), for respondent ORDER Per: Sanjiv Srivastava The appeal is a directed against Order in Original No 43/2010/CAC/CC(I)/SHH dated 11.05.2010 passed by Commissioner of Customs Import, Mumbai. Commissioner has held as follows: a) I confirm the demand of duty of ₹ 89,18,793/- (Rupees Eighty Nine Lakhs Eighteen Thousand Seven Hundred and Ninety Three) calculated @ 60% BCD Plus 50% Auxiliary Duty plus @ 15% CVD + 10% Special Central Excise Duty on CVD on the assessable value of ₹ 64,04,878/- under section 28 and Section 125(2) of the Customs Act, 1962 and Section 12 of the Customs Act, 1962. b) I order for confiscation of the imported equipment, Alcyon II Tele Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d exemption notification as are specified at Sl No 2(a), (b) (c) hence Commissioner has sought to erroneously deny the benefit of exemption to them. iii. They are a Charitable Organization and hence they fulfill the condition as specified at Sl No 1 of the table to The Exemption Notification and hence the benefit of exemption 64/88-Cus has rightly been availed by them. iv. The said Notification No 64/88-Cus has been rescinded on 01.03.1994. In view of the same they are not required to fulfill the conditions of said exemption notification after that day. v. Section 28 of the Customs Act, 1962 will not apply to the case were the benefit of exemption was rightly allowed to them at the time of importation but duty became payable due to post importation/ end use violation of conditions of exemption notification. vi. Demand under section 125(2) of the Customs Act, 1962 can be enforced only in case when the Appellant redeems the confiscated goods. It cannot be enforced in case they chose not to redeem the goods on payment of redemption fine. vii. Confiscation of the goods in terms of section 111(o) of the Customs Act, 1962 is not sustainable as at the time of importation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscation. ii. Hon ble Supreme Court has in case of Commissioner of Customs (Import) Mumbai Vs Jagdish Cancer Research Centre [2001 (132 ELT 257 (SC)] has upheld the confiscation of the goods for non fulfillment of the conditions prescribed even after importation and clearance of the goods. In the said judgment they have also held that duty in terms of section 125(2) of the Customs Act, 1962 is also payable in case Appellant opts to redeem the confiscated goods. 4.0 We have considered the submissions made. It is an admitted fact that for non fulfillment of the conditions of exemption notification No 64/88-Cus, DGHS has withdrawn the certificate issued by them for claiming the benefit under the said exemption notification. While remanding the matter back vide its order No C-II/2259-60/03/WZB dated 15.09.2003, CESTAT has observed that Appellants duty liability or otherwise would depend upon the certificate given by DGHS to the effect, and directed the adjudicating authority to consider the issue in light of the certificate given by DGHS. The importer had challenged the cancellation of the certificate by DGHS by way of writ petition No 3634 of 2005 before the Bombay High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to start functioning within a period of two years, and (iv) The request of the Centre was accepted and the consignment was cleared on 23.8.1989 free of duty. 3. The Department found that the Centre had failed to produce the installation certificate in terms of Condition No. 4(iii) of the Notification and had also failed to observe other conditions, so the imported goods were liable to confiscation. Consequently the imported equipment was seized by the Department on 22.1.1998. The Assistant Commissioner of Customs issued a notice to the Centre to show cause to the Adjudicating Authority, as to why customs duty amounting to ₹ 64,93,598/- be not demanded and the Teletherapy Unit be confiscated under Section 111(o) and for imposition of penalty under Section 112 of the Customs Act. 4. The Centre showed cause raising an objection that notice was not issued by the competent officer and was also beyond time in terms of Section 28(1) of the Customs Act. It was also pleaded that the Centre was not required to furnish any certificate in terms of condition No.4(iii) of the Notification since it was a running hospital. Insofar it relates to free treatment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification and resorted to willful miss- statement and suppression of facts with a sole intention of evading customs duty. The Tribunal found that a new case was made out for confiscation of the imported goods on the ground of not providing free treatment, which was not the ground for confiscation in Para 3 of the notice. It was also held that providing free treatment to patients according to conditions of notification is a continuing obligation in view of Mediwell case (supra). The CEGAT allowed the appeal holding that confiscation was not valid, the Centre however was liable to pay the duty but that could not be enforced for want of legal and valid show cause notice. 8. On behalf of the appellant, it has been vehemently urged that the show cause notice has not been issued under Section 28(1) of the Customs Act. Therefore question of notice having not been issued by a proper officer does not arises nor the question of limitation. It is submitted that the copy of the notice, as annexed, does not mention Section 28(1) of the Customs Act, in any case if it is taken to be there, as contended, that would make no difference. The submission is that Sub-section (2) of Section 125 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods. 11. Whenever an order confiscating the imported goods is passed, an option, as provided under Sub-section (1) of Section 125 of the Customs Act, is to be given to the person to pay fine in lieu of the confiscation and on such an order being passed according to Sub-section (2) of Section 125, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) of the Notification. In connection with the above argument, it would be relevant to refer to para 7 of notice, a perusal of which would indicate that confiscation of the subject goods was intended for violation of various conditions of Notification No.64/88 dated 1.3.1988. We find, that various conditions which were violated are indicated earlier in paragraphs 3 and 5 of the notice. Para 3 contained only one condition not various conditions. We, therefore, feel that reading the notice parawise and confining it watertight within each paragraph, would not be a correct way of construing a notice. It is to be read as a whole to find out as to whether the person concerned is made aware of the various grounds on the basis of which action is proposed to be taken as well as nature of the action. The view taken by the CEGAT on the point indicated above is erroneous and cannot be upheld. 13. Learned counsel for the respondent has next urged that looking to the total picture of the free treatment provided by the Centre, it is to be noticed that shortfall in providing free treatment is marginal. The percentage of persons provided free treatment cannot be precise. During certain perio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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