Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1452

Import of machinery for Hospital - benefit of Notification No. 64/88 denied for non-fulfillment of conditions

Case: DURGABHAI DESHMUKH HOSPITAL & RESEARCH CENTRE Versus C.C., HYDERABAD
 
Citation: 2011 (272) E.L.T. 300 (Tri. - Bang.)
 
Issue: - Import of machinery for Hospital - benefit of Notification No. 64/88 denied for non-fulfillment of conditions – issue of availability of benefit under other notifications required to be considered – Matter remanded.
 
Redemption fine imposed on assessee to be 10% of the value and not more.
 
Brief Facts:- Appellants imported medical equipment without payment of duty by filing Customs Duty Entitlement Certificate (CDEC) issued by the Director General of Health Services in terms of Notification No. 64/88-Cus, dated 1-3-1988. The bills of en­tries filed by the appellant were assessed by extending the benefit subject to the condition that they fulfilled the requirement of the said Notification. The CDECs issued by DGHS were withdrawn/cancelled by Authorities (DGHS) as per the letter dated 2-2-2001 on the ground that appellant has failed to fulfill the con­ditions of the Notification i.e. (a) providing free treatment on an average to 40% of all out door patients (b) to give free treatment to all indoor patients whose family income was less than Rs. 500/- per month and to keep for the above pur­pose 10% of the hospital beds reserved for such patients.
 
The Lower Authorities were of the view that since the CDECs were cancelled by DGHS, the im­ported goods were liable for confiscation under Section 111(o) of the Customs Act 1962 and the appellant is also held liable to discharge the duty foregone by Revenue.
 
Show cause notice was issued to the appellants. The Commissioner confirmed the demand of duties and also confis­cated the goods but gave an option to redeem the same on payment of redemp­tion fine and imposed penalty.
 
In appeal, the Tribunal remanded the matter back to the Adjudicating Authority with a direction to con­sider the issue afresh keeping all the connected issues open.
 
The Adjudicating Authority in de-novo proceedings held that appellant is not able to satisfy the conditions of Notification No. 64/88-Cus in two ways i.e. firstly CDECs were cancelled and secondly they were not able to fulfill the condition of free treatment of 40% of outdoor patients and reserve 10% of the beds for the patients whose monthly income is less than Rs. 500/-. The Adjudicating Authority confirmed the demand, confiscated the goods with an option to redeem the same on payment of redemption fine and also imposed penalty on the appellants.
 
Aggrieved by such an order, appellants are before the Tribunal.
 
Appellant’s Contention:- Appellant, referring to earlier Order of the Tribunal, submitted that as regards the cancellation of CDECs they had filed writ petition before the High Court and the matter was pending.
 
With regard to the condi­tion of free treatment of 40% of out-door patients and reserving 10% of the beds for poor patients whose monthly income is less than 500/- it was submitted that they had maintained records. The Adjudicating Authority has also held that one Multi Channel Cardioscope and spare parts of Angioscope were imported under Notification No. 64/88. It was submitted that these two instruments were never a part of the Notification No. 64/88 but were imported under Notifi­cation No. 208/81-Customs and 65/88 de horse the conditions in Notification No. 64/88.
 
Respondent’s Contention:- Revenue submitted that the Adjudicating Authority had verified the correctness of the claim of appellant by looking into the registers maintained by them i.e. in-patient registers and number of patients treated free. That the judgment of Tribunal in Final Order No. 1240/2010, dated 23-10-2010 in an identical issue will cover the case of Revenue and the appellant has to justify the benefit claimed by it un­der Notification No. 64/88. It was submitted that having not complied with both the conditions i.e. holding CDECs and the condition of treatment of 40% of the patients freely and reserve 10% of the beds for the poor patients with less than Rs. 500/- income, the appellants are liable to discharge the duty liability which has been foregone by Revenue.
 
Reasoning of Judgment:- At the outset, the Tribunal found that the claim of appellants in respect of the multi channel cardioscope and spare parts of angioscope being eligible for benefit of Notification No. 208/81-Cus and 65/88-Cus respectively has not been addressed by the Adjudicating Authority in the order-in-original. The Appellant’s claim for benefit of alternative Notification needs to be addressed by the Ad­judicating Authority. In view of the claim of the appellant for exemption for these two items, under other notifications needs to be addressed and that can be done only by the Adjudicating Authority looking at the records.
 
It was found from the impugned order that the Adjudicating Authority has not con­sidered the submissions of appellant only on the ground that the de novo order does not direct the authority to do so. On perusal of the earlier order of the Tribunal, it was found that in paragraph-2, it was clearly directed that all the con­nected issues to be kept open.
 
The Tribunal held that appellant was right in claiming the benefit of Notification which if available to them cannot be denied. Hence, as regards the demand of duty and the confiscation and penalty imposed on these two items, the Tribunal found that the impugned order is unsustainable. The impugned order to the extent it confirms the demand of duty and order of confiscation of such goods without considering the plea of appellant for eligibility under Notifica­tion 208/81-Cus and 65/88-Cus is incorrect and is set aside and matter is remanded to the Adjudicating Authority to reconsider this issue afresh in the light of the Notifications and other records that may be produced by the appellant.
 
As regards the availability of benefit of Notification No. 64/88-Cus and all other items, the Tribunal found that the Adjudicating Authority has verified the correctness of appellant’s claim as to fulfilling of the conditions of Notification and recorded a finding that appellants have not fulfilled them. It is undisputed that the CDECs which were given to appellants for import of such machinery were cancelled by the DGS&D.
 
The Tribunal noted that no stay was granted in the writ petition filed by appellant, this would indi­cate that as on today the cancellation of CDECs is in force. The second condi­tion to be satisfied by the appellant regarding free treatment of 40% of patients out-door patients and reserving of 1.0% of beds for poor people whose monthly income is less than Rs. 500/-, the verification done by the Adjudicating Authority does indicate that the appellant has not been doing it so. In the absence of fulfillment of the conditions of the said Notification No. 64/88-Cus, the appellant is not eligible for benefit of the Notification. Therefore, the hospital equipment imported claiming benefit of Notification No. 64/88-Cus are liable for confiscation. Duty liability is also to be discharged. The Tribunal found that this issue is now squarely settled by various decisions. Reliance placed on Mediwell Hospital & Health Care Pvt. Ltd v. U0I [1997 (89) E.L.T. 425 (S.C.)].
 
Further, the Tribunal found that the Adjudicating Authority while confiscating the imported medical equipment has allowed redeeming of multi-channel cardio scope and spare parts of angio scope on payment of redemption fine for which appellant is claiming benefit under different Notifications.
 
The Tribunal also found that the demand of duty is also combined, as the impugned order confirming the demand of duty on multi-channel cardio scope and spare parts of angioscopeis set aside, the Adjudi­cation order needs re-quantification based upon further findings of the Adjudicat­ing Authority on the eligibility of Notifications No. 208/81-Cus and 65/88-Cus of the said equipment.
 
It was also noted that in the first order, the Adjudicating Authority has imposed redemption fine of Rs. 3,00,000/- which was increased to Rs. 8,00,000/- in denovo proceedings, which is not in accor­dance with settled principles of law. In a recent judgment in the case of CC, Cochin v. Little Flower Hospital [Final Order No. 1240/2010 dated 23.10.2010], it has been held that redemption fine in lieu of confiscation should be 10% of the value. Direction given to the Adjudicating Authority to consider this decision while imposing redemption fine as well as decide on imposition of penalties.
 
Decision:- Appeal disposed of by way of Remand.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com