Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

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