Page 203 - ELT_1_1st April 2020_Vol 372_Part

2020 ] KESHLATA CANCER HOSPITAL PVT. LTD. v. COMMR. OF CUS. (IMPORT), MUMBAI 89

CASES CITED
Bombay Hospital Trust v. Commissioner — 2006 (201) E.L.T. 555 (Bom.)
— Distinguished ....................................................................................................................... [Paras 8, 9]
Commissioner v. Jagdish Cancer & Research Centre — 2001 (132) E.L.T. 257 (S.C.)
— Relied on ................................................................................................................................ [Paras 2, 12]
Fortis Hospital Ltd. v. Commissioner — 2015 (318) E.L.T. 551 (S.C.) — Relied on .................... [Paras 8, 9]
Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India — 1997 (89) E.L.T. 425 (S.C.)
— Relied on ................................................................................................................................ [Paras 2, 16]
Shah Diagnostic Institute Pvt. Ltd. v. Union of India — 2008 (222) E.L.T. 12 (Bom.)
— Distinguished ........................................................................................................................... [Para 17]
REPRESENTED BY : Shri S. Suriyanarayanan, Advocate, for the Appel-
lant.
Shri C. Singh, Assistant Commissioner (AR), for the
Respondent.
[Order per : C.J. Mathew, Member (T)]. - The brief facts in the appeal of
M/s. Keshlata Cancer Hospital Pvt. Ltd. against Order-in-Original No.
36/2010/CAC/CC(I)/SHH, dated 30th March 2010 of Commissioner of Customs
(Import), New Customs House, Mumbai are that the dispute pertains to import
of ‘Theratron-Phoenix Cobalt-60 (electro therapeutic apparatus)’ valued at
` 42,51,006 imported vide Bill of Entry No. 9082/26-2-1991 by availment of ex-
emption under Notification No. 64/88-Cus., dated 1st March 1988 and on which,
in consequence of notice dated 20th May 1999, recovery of duties of Customs
amounting to ` 61,49,020.08 was ordered under Section 125(2) of Customs Act,
1962 read with Section 12 of Customs Act, 1962 in addition to confiscation of the
impugned goods under Section 111(o) of Customs Act, 1962 with option to re-
deem the same on payment of fine of ` 15,00,000 besides imposition of penalty of
` 15,00,000 under Section 112 of Customs Act, 1962 on the importer.
2. A brief background to the contours of the dispute is essential to a
clearer appreciation of the proceedings. The imports were effected in 1991 and,
while confiscation of goods may be proceeded with under Section 111 without
reference to elapse of time, recovery of duty is constrained by the limits that bind
statutory authorities in Section 28 of Customs Act, 1962. Furthermore, the exemp-
tion notification did not prescribe any time frame to determine compliance with
the conditions prescribed therein. This conundrum was resolved judicially, par-
ticularly in the imports of medical equipment against conditional exemption, and
sustained by the principle of continuing obligation enunciated in Mediwell Hospi-
tal & Health Care Pvt. Ltd. v. Union of India and Others [1997 (89) E.L.T. 425 (S.C.)]
and the alternative empowerment for recovery under Section 125(2) when goods
are confiscated enunciated in Commissioner of Customs (Import), Mumbai v. Jagdish
Cancer and Research Centre [2001 (132) E.L.T. 257 (S.C.)]. In view of this, the chal-
lenge of limitation to recovery of duty in cases of open-ended conditional exemp-
tions where goods are confiscated for non-compliance with post-importation
conditions is not required to be gone into.
3. We are compelled, owing to the reasons adduced in the impugned
order of confiscation, to also consider the nature and extent of the exemption
availed by the appellant. The scheme of duty exemption is contingent upon a
‘duty exemption’ certificate issued by Director General of Health Services, Gov-
ernment of India to eligible hospitals for import of equipment that are not manu-
factured in India. It is also prescribed that the said equipment should be evinced

EXCISE LAW TIMES  1st April 2020  251