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90 EXCISE LAW TIMES [ Vol. 372

as having been installed in the importing hospital. Eligible hospitals are such that
offer free treatment to 40% of outdoor patients and to all indoor patients with
income less than ` 500 per month towards which end at least 10% of the beds
would be earmarked and to others at rates which are commensurate with the
paying capacity of the patients. No specific documentation requirements or mon-
itorial system was prescribed in the said notification. This scheme was with-
drawn subsequently vide Notification No. 99/94-Cus., dated 1st March 1994
which rescinded the exemption notification.
4. Undoubtedly, the recovery has been ordered under Section 125(2) of
Customs Act, 1962 in conjunction with the confiscation of goods under Section
111(o) of Customs Act, 1962; the reference to Section 12 of Customs Act, 1962 is,
therefore, a superfluity that would have been contestable as empowering recov-
ery of duty when it is patently a charging section hyphenating machinery provi-
sions for assessment, valuation and recovery of unpaid duties in the statute with
Article 265 of the Constitution of India. It breather life into Customs Act, 1962
and not to the actions of officers of customs which must, necessarily, draw em-
powerment from machinery provisions of the Act, which Section 12 of Customs
Act, 1962 is not. Being a superfluity on the part of the adjudicating authority, we
do not dwell any further on it.
5. The impugned order proceeds from the finding that the conditions of
the exemption notification have been observed to have been transgressed in di-
vers manners. These are : failure to submit the installation certificate, failure to
provide free treatment to each and every patient with income less than Rs. 500
per month, failure to furnish evidence that 10% of the beds were allotted to pa-
tients for treatment with the imported equipment, failure to evince, with ac-
ceptable records, that those accorded free radiotherapy were indoor patients or
outdoor patients and failure to produce evidence of reasonableness of charges
collected from other patients.
6. Learned Counsel for appellant seeks relief primarily on the ground
that the conditions in the notification had been complied with. Though Learned
Authorised Representative, while reiterating the findings of the original authori-
ty, has relied upon a number of decisions, all of these do not have to be dealt
with in view of the accepted premises on which proceedings were initiated. In
the context of factual submissions, these are not of much relevance and, to the
extent that they are, we shall, at the appropriate places, refer to them.
7. The first issue to be considered is the correctness on the part of the
adjudicating authority to disentitle the appellant from the privilege of Notifica-
tion No. 64/88-Cus., dated 1st March 1988. This, in our opinion, is an incorrect
finding. The appellant had, at the time of import in February 1991, cleared the
said equipment upon presentation of all documents that qualified them to the
benefit of the exemption; alleged subsequent failure to comply with post-
importation conditions may lead to confiscation for non-compliance without call-
ing into question the eligibility at the time of import. Indeed, there is no allega-
tion of non-eligibility at the point of import and this finding is without suste-
nance.
8. It has been contended by Learned Counsel that the appellant is not
interested in the usage of the imported equipment sans the privileges of the noti-
fication and, in the absence of any inclination for redemption of the confiscated
goods, the duty liability shall not devolve on them. Learned Authorised Repre-

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