AMAR DIAGNOSTIC CENTRE AND Vs. COMMR. OF CUS.

JUDGEMENT

(1.) THIS appeal is against the order passed by the Commissioner (Appeals) in a second round of litigation by the appellants. The appellants had imported a CT Scanner and cleared the same free of duty under Notification No. 64/88 -Cus., dated 1 -3 -88. We have before us two applications filed in this appeal. One is an application by the Revenue for early hearing of the appeal and the other is by the appellants themselves seeking waiver of pre -deposit and stay of recovery in respect of the amount of duty demanded from them under Section 28(2) of the Customs Act by the authorities below. When the applications arose first in the roll -call of cases, we suggested to hear the appeal itself after granting waiver of pre -deposit and the suggestion was acceptable to both the sides. Later on, the matter has arisen before us in the regular hearing list. The early hearing application filed by the Revenue stands allowed. After granting waiver of pre -deposit we take up the appeal for final disposal.

(2.) THE appellants had imported a CT Scanner and cleared the same without payment of duty upon execution of a bond in terms of Notification No. 64/88 -Cus., dated 1 -3 -88, But, as they failed to fulfil the requirement of producing Installation Certificate from the Director General of Health Services, the Jurisdictional Asstt. Commissioner of Customs, in adjudication of a show cause notice issued for denying the benefit of the exemption notification, passed an order demanding the duty of Rs. 36,13,680/ - on the imported item under Section 28(2) of the Customs Act. An appeal preferred by the party against that order was rejected by the Commissioner (Appeals). The party then filed an appeal with this Tribunal and the latter remanded the matter to the lower appellate authority with a direction to dispose of the appeal of the party after the Delhi High Court decided certain case involving the DGHS and presumably having some bearing on the instant case. The present impugned order was passed by the Commissioner (Appeals) pursuant to such remand. We have perused the impugned order and we note that, as the appellants could not state the results of the High Court case, Ld. Commissioner (Appeals) took up the matter for final disposal. Further, it appears that, before the Commissioner (Appeals), the appellants submitted that they had filed a writ petition in the A.P. High Court against the rejection, by the DGHS, of their request for Installation Certificate. Apparently, the Customs proceedings were not under challenge before the High Court and no stay of any such proceedings was ordered by the Court. In the circumstances, justifiably, the Commissioner (Appeals) took up the party's appeal for final disposal. He noted that the DGHS vide its letter dated 21 -8 -97 had rejected the request of the appellants to issue Installation Certificate for the CT Scanner in terms of the Notification. The Commissioner (Appeals) found that the appellants had not fulfilled the conditions of the Notification, and accordingly affirmed the order of the lower authority. Hence the present appeal.

(3.) HEARD both the sides. Ld. Counsel concedes that the DGHS has not issued any Installation Certification till date. He submits that all other conditions of the Notification were fulfilled by the appellants. However, we do not find any evidence on record, of this fact. Ld. Counsel then relies on the decision of the West Zonal Bench of this Tribunal in Gautam Diagnostic Centre v. CC, Mumbai reported in 2001 (133) E.L.T. 812, wherein it was held that the benefit of Notification No. 64/88 -Cus. was not to be denied on the ground that installation certification was not produced, if the hospital was shown to be in existence before import of the goods. Counsel prays for relief on the basis of the cited decision, or, alternatively, remand of the matter to the lower appellate authority.