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TMI Blog2007 (9) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... ) under Section 25(1) of Customs Act. By this notification, the Central Government granted exemption from payment of whole customs duty on all equipments, apparatus and appliances including spare parts and accessories excluding consumable items imported from outside the country subject to fulfilment of conditions specified in Table appended to the notification. 5.On 15-2-90, (Ann. A-2 to 4) the appellant applied to specified Authorities for grant of custom duty exemption certificate and custom clearance permit for importing batches of medical equipments known as "Collect 8 Haematology System" from abroad in terms of aforesaid exemption notification. The State of MP by their letters dated 10-3-89 (A-5 to 7) recommended the case of appellant as per requirement of exemption notification. Similarly the Central Govt. by their letter 15-2-90 (Ann. A-8 to 10) granted eligibility certificate in appellant's favour so as to enable them to import the medical equipment for their Hospital as claimed by them in their applications (Ann. A-2 to 4). Accordingly on compliance, having been made, the appellant cleared four medical equipments imported from Honkong, West German and Japan on the strengt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uipments on the strength of exemption notification (64/88) dated 1-3-88 after following required procedure for claiming exemption from payment of custom duty and thus, they were rightly granted exemption from payment of Custom Duty as per exemption notification. The appellant also raised a plea of limitation by contending that issuance of show cause is barred by virtue of section 28 of Customs Act as the same was not issued within the stipulated time prescribed either under sub-sections (a) or (b) of Section 28 ibid. In sum and substance, therefore, the appellant denied their liability to pay any customs duty on the equipments which they had imported on the strength of exemption Notification No. 64/88 in the year 90-91 as demanded by Commissioner in the show cause notice. 9.The Commissioner by order dated 18-8-03 (Ann. A-18) upheld the show cause and confirmed the demand by rejecting the contention of the appellant. This is what the Commissioner held : "ORDER I confirm the duty amounting to Rs. 15,57,958/- (Rupees"(i) Fifteen Lakh Fifty Seven Thousand Nine Hundred Fifty Eight) demanded and payable on the imported hospital equipments as raised in the impugned SCN for reasons reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this submission learned Counsel contended that when admittedly the exemption Notification 64/88, dated 1-3-88 was rescinded by Central Government by subsequent notification No. 98/94, on dated 1-3-94, then in such circumstances no action much less adverse action could be taken by Revenue (Custom department) against the appellant on and after 1-3-94 in respect of exemption notification (64/88). Learned Counsel submitted that in the absence of any saving clause in the rescinding Notification No. 98/94, dated 1-3-94, the plain and simple effect of rescinding of notification would come in operation as if the exemption notification 1-3-94 remains no longer available for any purpose on the statute Book much less for initiating any adverse action against the Assessee on and after 1-3-94. It was his submission that since the impugned show cause notice was issued in the year 2000 i.e. much after the exemption notification was rescinded (1-3-94), and hence the show cause notice is totally without jurisdiction because on and after 1994, the Commissioner had no authority to issue any show cause in respect of issues relating to exemption notification. Learned Counsel placed heavy relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance of goods in question as provided in Section 28 of the Customs Act but not on the expiry of 1 year from the date of clearance of goods. Since in this case, the goods were imported in the year 1990-91, whereas the impugned show cause was issued after 10 years i.e. in the year 2000 (30-3-2007) and hence it is not legally sustainable being barred and hence contravene the provisions of Section 28 of the Act. 16.It is these 4 submissions which were elaborated by learned Counsel for the appellant (Assessee) with reference to the provisions of Customs Act and the law laid down by Supreme Court in cases cited at the bar. 17.In reply, learned Counsel for the Revenue while defending the impugned orders in the first instance contended that the issues, which were not raised by the appellant before the authorities below including before the Tribunal while opposing the show cause cannot be allowed to be raised for the first time in this appeal. According to learned Counsel, the first submission of learned Counsel for the appellant viz that whole proceedings are without jurisdiction because they were issued subsequent to rescinding of the exemption notification was not raised by appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered view, these questioning really arise for consideration and goes to the root of the case. Equally true is that since the submissions were not raised before the Tribunal and hence no finding on either way could be returned by the Tribunal on any of these issues. Same was the case in relation to other 3 submissions of appellant urged in support of the appeal. Indeed, learned Counsel for the Revenue did not dispute this position that these issues does arise and involve in the case. 20.Similarly we notice rather with constraint that Tribunal while deciding the appeal did not take note of any of the decided case law on the subject rendered by Supreme Court which has its application to the facts of the case and may conclude the issue either way once applies to the case in hand. Rather they were totally ignored though holding the field on the issues involved. In substance, the appeal was decided by the Tribunal in most perfunctory and casual manner without taking into account any questions and relevant case law on the subject. What is more a matter of concern is that when law laid down by Supreme Court on all relevant issues is holding the field and the same is ignored by the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the appellate court. We do not consider it proper to exercise our powers as provided in Section 130(6) of the Act in this appeal for deciding all these questions for the first time in this appeal because of peculiar nature of factual controversy raised by the parties in show cause as also in its reply and now in appeal. This requires fresh look by the Tribunal for deciding the issue as mixed question of fact and law. Had it been only issue of law, one could have invoked powers available under Section 130(6) ibid. Such does not appear to be a case of that nature when we see the whole controversy. We also feel that remand of the case to Tribunal would not cause prejudice to any of the parties. On the other hand, it will enable both the parties to present their case in proper perspective before the Tribunal both on facts and at law so as to enable the Tribunal to record definite finding on all issues relating to facts and law. Either party depending upon the out-come of the case may again approach this court in appeal. This court would then be in a better position to decide the appeal because of findings of Tribunal already recorded in accordance with law. 22.Needless to say, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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