Customs Appeal No. 11 of 2005. Case: Commissioner of Customs (Import) Vs Gautam Diagnostic Centre. High Court of Bombay (India)
| Case Number | Customs Appeal No. 11 of 2005 |
| Counsel | For Appellant: Shri A.S. Rao a/w Jitendra B. Mishra, Adv. and For Respondent: Shri J.C. Patel a/w Prasad Paranjape, Jas Sanghavi, Ms. Niyati Hakani i/b. PDS Legal. |
| Judges | S.C. Dharmadhikari and Sunil P. Deshmukh, JJ. |
| Issue | Customs Act, 1962 - Section 122 |
| Citation | 2015 (325) ELT 735 (Bom) |
| Judgement Date | January 23, 2015 |
| Court | High Court of Bombay (India) |
Order:
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In Customs Appeal No. 11/2005 it is admitted that the Revenue has challenged the order passed by the Customs, Excise and Service Tax Appellate Tribunal dated 20th August, 2004 [2004 (177) E.L.T. 661 (Tri.-Mumbai)]. The appeal has been admitted on the following substantial questions of law. That reads as under:
"(i) Whether in the facts and circumstances of the case, the Tribunal was right in law in setting aside the order for imposition of penalty on the importer and the proprietor?
(ii) Whether in the facts and circumstances of the case, the Tribunal was right in law in setting aside the order for confiscation of the goods?
(iii) Whether the importers are liable to pay duty which has arisen not merely because the goods have been confiscated but also because the conditions of the notification have been violated and also when the importers have utilised the imported items for their full life?"
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It is conceded before us that all the questions which have been framed as substantial question of law by this Court and while admitting this appeal could not have been framed and considered at all. That is simply because the Revenue is aggrieved by the order of the Tribunal passed on the assessee''s appeal. The assessee was aggrieved by the order of confiscation of the goods and levy of penalty. The demand for duty was not even confirmed by the Commissioner while adjudicating the show cause notice. That part of order passed by the Commissioner has not been questioned by the Revenue before the Tribunal. In such circumstances, question No. 3 is deleted. However, we will note the arguments of Mr. Rao based on question No. 3 to support the ultimate finding and conclusion of confiscation and penalty in the Commissioner''s order.
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The facts necessary to decide these questions in brief are that:-
The respondent-assessee has a Diagnostic Centre. It is the importer in question. It imported the consignment of medical equipments comprising of "Ampulatory ECG Model 43420 A" valued at Rs. 5,75,514/- and "Page Writer Multi-Channel Recorder for Cardio-electro Physiology Computerised Analysis System" valued at Rs. 18,110/-. The Bill of Entry 9232, dated 25th July, 1990 was filed for clearance of these goods. The importer sought the clearance of the imported goods duty free relying upon Notification No. 64-Cus., dated 1st March, 1988. While claiming clearance of these goods on duty free basis the importer relied upon the certificate styled as Customs Duty Exemption Certificate dated 30th March, 1990 and 28th December, 1988 produced at the time of clearance. These goods were, therefore, allowed to be cleared duty free on the strength of this Notification.
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Later on, the Director General of Health Services passed an order on 17th December, 1997 withdrawing the certificate issued, namely, Customs Duty Exemption Certificate. That was withdrawn by holding that M/s. Gautam Diagnostic Centre (the importer) was only a Diagnostic centre, not having indoor patient facilities. It, therefore, does not fulfil the conditions stipulated in the Notification dated 1st March, 1988 for availing and retaining the exemption.
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In view of this letter/communication from the Director General of Health Services, New Delhi, the inquiries were conducted by the Officers of the Customs and imported medical...
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