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TMI Blog2003 (6) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... there was a dispute in regard to grant of exemption under Notification No. 64/88 to the MRI scanner imported against CDEC No. Z-37036/5/90/MG, dated 14-5-1990 issued by DGHS. The dispute had reached the Apex Court, where it was settled accepting the affidavit of the appellant who undertook as follows :- (a) 40% of the outdoor patients will be treated as free of costs, (b) The Superintendent of Chittaranjan Cancer Hospital, Calcutta, may refer the indoor patients having monthly income of less than Rs. 500/- per month and also not exceeding 10% of the total beds in the said hospital, every year for free diagnostic treatment and the respondent shall provide such treatment to such patient free of charge, and (c) That the equipments imported and forming subject matter of the present appeal shall not be disposed off by the respondent, without 30 days clear notice in writing, to the Collector of Customs, Calcutta. 3.It is the case of the appellant that they have complied with the aforesaid undertaking while the impugned scanner was installed at Woodlands Nursi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal number of patients they have treated and that 40% of them are the indigent persons below stipulated income of Rs. 500/- per month with full particulars and address thereof which would ensure that the application to treat 40% of the patients free of cost would continuously be fulfilled. In the event of default, there should be coercive official action to perform their obligation undertaken by all such persons. This condition becomes a part of the exemption order application and strictly be enforced by all concerned including the Police personnels when complaints of non-compliance were made by the indigent persons, on denial of such treatment in the concerned hospital or diagnostic centers, as the case may be." 6.It is clear from the above that the obligation under the said notification requires to be continuously fulfilled subsequent to the import. The Apex Court also observed that the conditions in the Notification are required to be strictly enforced by all concerned including the police personnel and that coercive official action is required to be taken in the event of default. The same notification has again been considered by the Apex Court in the case of Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the briefcase of one of the Directors in the appellant-company for which an F.I.R. was filed. It is seen from the copy of the letter dated 10-11-1995 at Page 220 of the paper book that the appellants have informed the Collector of Customs that the management was considering to dispose of the impugned machine as it was serving no purpose. The last sentence in the letter reads, "This is for your kind information and please advice us accordingly". It is significant that the appellants have proceeded to dispose of the machine without waiting for any advice from the Customs authorities or without reminding them or consulting them. It is only after the impugned scanner was seized at Siliguri from the buyers and Show Cause Notice was issued that the appellants have come up with the plea that they had sent the said letter dated 10-11-1995 to the Collector of Customs and that the acknowledgement for the same was stolen on 5-8-2000. The conduct of the appellant in disposing of the machine does not show that they had taken enough care to apprise the Customs authorities regarding the sale or take their advice or approval in the matter. We are of the opinion that even if they had sent the lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l-cum-Diagnostic Centre Pvt. Ltd. and the Show Cause Notice proposed penal action against him. However, as noted above, no penalty has been imposed on him under the impugned order. The said M/s. Florence Medical-cum-Diagnostic Centre Pvt. Ltd. have also not filed any appeal against the confiscation of the goods before us. It is clear that M/s. Florence Medical-cum-Diagnostic Centre Pvt. Ltd. have neither represented before the Adjudicating Commissioner nor before this Tribunal regarding the alleged breach of Section 124 despite a copy of the Show Cause Notice issued to them and a copy of the adjudication order sent to them. Having sold the impugned scanner, the appellants are no longer the owner of the same by their own reasoning and, therefore, they cannot invoke the provision of Section 124 which applies to the owner. 12.We have considered the appropriateness of the quantum of fine, duty and penalty determined under the impugned order. No doubt, the Notification No. 64/88 has continuing obligation and failure to fulfil the same by selling the scanner disentitles the importer to the exemption apart from attracting confiscation and penalty. One has to consider a situation where th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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