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92 EXCISE LAW TIMES [ Vol. 372

should have been alive of the situation that the Noticee may not exercise
the option and in such case, duty would not be payable automatically.
19. It is not that the Department is without any remedy. We have gone
through the provisions of Notification No. 64/88, dated 1-3-1988. As point-
ed out above, importer would be exempted from payment of import duty
on hospital equipment only when the conditions contained in the said noti-
fication are satisfied. Some of the conditions, as pointed out above, are to be
fulfilled in future. If that is not done and the importer is found to have vio-
lated those conditions, show cause notice could always be given under the
said notification on payment of duty, independent of the action which is
permissible under Section 124 and Section 125 of the Act. It is also im-
portant to mention that under certain circumstances mentioned in the noti-
fication, the importer can be asked to execute a bond as well. In those cases,
action can be taken under the said bond when the conditions contained
therein are violated. Therefore, if the Department wanted the Institute to
pay the duty, which may have become payable, it could have taken inde-
pendent action; de hors Section 124 of the Act, for payment of duty, simulta-
neously with the notice under Section 124 of the Act or by issuing compo-
site notice for such an action. No doubt, it could have waited for option to
be exercised by the Institute under Section 125(1) of the Act as well and in
that eventuality, duty would have automatically become payable under
Section 125(2) of the Act. But when such an option was not exercised, it
could have taken separate and independent action by issuing show cause
notice to the effect that the Institute had violated the terms of exemption
notification and therefore, was liable to pay duty.’
9. In doing so, the Hon’ble Supreme Court, though not dealing with
appeal against the decision cited by Learned Authorized Representative, has,
nevertheless, rendered the finding on the submission made on behalf of Revenue
that
‘15. Mr. K. Radhakrishnan, Learned Senior Counsel appearing for the De-
partment, argued that even if an option was not exercised, the moment it
was stated in the order of the Commissioner that fine is being “imposed”,
sub-section (2) would get attracted. We do not agree with the aforesaid
submission of Mr. Radhakrishnan. The order confiscating the goods has al-
ready been reproduced above. Insofar as the payment of fine is concerned,
only option was given (and that was only course of action which could be
visualized under Section 125). The order categorically states that “the im-
porter “may” redeem the confiscated goods on payment of fine of Rs.
1,00,000 (Rs. One lakh only)”.’
which is the pith and substance of the decision of the Hon’ble High Court of
Bombay. Indeed, the goods, if available, upon confiscation vests with the Central
Government in the possession of the adjudicating authority and it is only upon
release by the Central Government, on redemption, that the goods returns to the
possession from whom they were confiscated. Thus, unless redemption is taken
recourse to, goods stand absolutely confiscated and the limitation on recovery
posited in re Bombay Hospital Trust subsists.
10. The next ground that the adjudicating authority justifies the confis-
cation with is the failure to produce the installation certificate. Learned Counsel
submits that substantive compliance cannot be disputed; according to him, the
equipment, utilising cobalt, required the supervision and control of Bhabha
Atomic Research Centre as prescribed in the regulatory regime pertaining to ra-
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