Page 207 - ELT_1_1st April 2020_Vol 372_Part

2020 ] KESHLATA CANCER HOSPITAL PVT. LTD. v. COMMR. OF CUS. (IMPORT), MUMBAI 93

dioactive materials which is available on record. We find that to be an undisput-
ed fact. Moreover, the impugned order has placed reliance on the Letter No. Z-
37035/7/90-MG, dated 17th September 1999 of Director General of Health Ser-
vices cancelling the duty exemption certificate issued by them which does not
even suggest that such installation has not taken place. Technical objections such
as non-submission of installation certificate is not sufficient ground for denial of
exemption when noninstallation is not alleged.
11. We find that paragraph 4(b) and (c) of the said notification, referred
to by the adjudicating authority, do not specify any time-limit within which the
installation certificate was to be furnished. In paragraph 4(b), the importer is re-
quired, at the time of import, to undertake to produce the prescribed certificate
within such time as specified by the Assistant Collector of Customs and in para-
graph 4(c) it is enjoined that the importer shall furnish the same. In view of the
conspicuous silence in the show cause notice on the deadline within which this
was to be complied with, it would appear that such period had not been speci-
fied at the time of import. It was only in the show cause notice issued more than
eight years after the import that this certificate was called for. The appellant did
plead before the original authority that it would be well nigh impossible to se-
cure such a certificate after this lapse of time. Moreover, with the Director Gen-
eral of Health Service having withdrawn the ‘duty exemption certificate’, there
was a disclaimer of being obliged to issue such a certificate.
12. In this circumstance, the consequence of such withdrawal is an as-
pect that is moot to the eligibility for import with the privileges under the notifi-
cation. We have found supra that eligibility at the time of import is clearly distin-
guishable from the obligation to fulfil post-importation condition with the at-
tendant detriment of confiscation. That is the clear thread in the decision of the
Hon’ble Supreme Court in re Jagdish Cancer & Research Centre, the ‘duty exemp-
tion certificate’, being relevant to determine eligibility for import, is not material
to action under Section 111(o) of Customs Act, 1962 which is contingent upon
non-conformity with germane post-importation conditions. Had the impugned
order chosen, under section 28 of Customs Act, 1962 to recover duty that had not
been collected at the time of import, owing to non-eligibility, this may have been
sufficient cause. That is now an academic issue with the demand having been
made under other provisions and the application of limitation of five years from
date of import. Therefore, the subsequent withdrawal of a validly issued ‘duty
exemption certificate’, has no consequence on the impugned proceedings.
13. We take note of another aspect that appears to have been over-
looked by the adjudicating authority. The universal qualification to be eligible for
exemption does not extend beyond paragraph 2 of the said notification. From a
plain reading of paragraph 3 and paragraph 4, it would appear that these are
special provisions to cater to special contingencies, viz., in the event of not
providing free treatment and by hospitals that are yet to be commissioned. It
would appear from the cited portions of paragraph 4 that these relate to under-
takings made in those special contingencies. No other construction can be placed
on a harmonious reading of the notification. It is not alleged that the appellant
fell in one of these special categories. The certification sought for by the adjudi-
cating authority is clearly not applicable to importer and the non-production
thereof is no ground for confiscation or denial of privileges of exemption.

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