Hissar Medical Diagnostic and Vs. C.C. - Court Judgment

Excerpt:
1. this is an application filed by m/s hissar medical diagnostic & hospitals ltd. for waiver of pre-deposit of customs duty amounting to rs. 27,06,700 and equivalent amount of penalty.2. shri r.p. singh, learned consultant, submitted that the applicants imported one whole body scanning machine from japan in 1992 and cleared the same without payment of duty availing the benefit of notification no. 64/88-cus dated 1.3.86; that the commissioner under the impugned order has confirmed the customs duty and imposed penalty besides confiscating the impugned scanner on the ground that the conditions specified in the notification have not been complied with by the applicants; that they have fulfilled the conditions of the notification and as such they are eligible for the availment of the benefit of exemption notification. finally the learned consultant submitted that their financial condition is hot sound as the applicants have suffered a loss of rs. 19,452 in 2002-03.3. countering the arguments shri vikash kumar, learned sdk, reiterated the findings of the commissioner in the impugned order wherein it has been mentioned that the director general health services has come to the conclusion that the applicant is only a diagnostic centre not having indoor patient facility and they are not fulfilling the conditions for availing and retaining customs duty exemption certified issued to them; that once the customs duty exemption certificate has been cancelled the benefit of notification could not be extended to them.4. we have considered the submissions of both the sides. in view of the findings of the commissioner in the impugned order and the cancellation of their customs duty exemption certificate by the director general health services the applicants have not made out a prima facie case in their favour for waiver of pre-deposit of the entire amount of duty. we also do not find that direction to deposit any sum in compliance with the provisions of section 129e of the customs act would cause them undue financial hardship as they have suffered a loss of only rs. 19,252 when their total receipts are more than rs. 18.60 lacs. we, therefore, direct the applicants to deposit a sum of rs. 15 lacs within 8 weeks from today and on complying with this direction there shall be waiver of pre-deposit of remaining amount of duty and the entire amount of penalty and the recovery of the same will remain stayed during the pendency of the appeal. the matter will come up for reporting compliance on 28.1.2004. any failure to comply with this direction will result in dismissal of their appeal without any further notice.

Judgment:
1. This is an application filed by M/s Hissar Medical Diagnostic & Hospitals Ltd. for waiver of pre-deposit of Customs duty amounting to Rs. 27,06,700 and equivalent amount of penalty.

2. Shri R.P. Singh, learned Consultant, submitted that the applicants imported one whole body scanning machine from Japan in 1992 and cleared the same without payment of duty availing the benefit of Notification No. 64/88-Cus dated 1.3.86; that the Commissioner under the impugned Order has confirmed the Customs duty and imposed penalty besides confiscating the impugned scanner on the ground that the conditions specified in the Notification have not been complied with by the Applicants; that they have fulfilled the conditions of the notification and as such they are eligible for the availment of the benefit of exemption notification. Finally the learned Consultant submitted that their financial condition is hot sound as the Applicants have suffered a loss of Rs. 19,452 in 2002-03.

3. Countering the arguments Shri Vikash Kumar, learned SDK, reiterated the findings of the Commissioner in the impugned Order wherein it has been mentioned that the Director General Health Services has come to the conclusion that the Applicant is only a Diagnostic Centre not having Indoor Patient facility and they are not fulfilling the conditions for availing and retaining Customs duty exemption certified issued to them; that once the Customs Duty Exemption certificate has been cancelled the benefit of Notification could not be extended to them.

4. We have considered the submissions of both the sides. In view of the findings of the Commissioner in the impugned Order and the cancellation of their customs duty exemption certificate by the Director General Health Services the Applicants have not made out a prima facie case in their favour for waiver of pre-deposit of the entire amount of duty. We also do not find that direction to deposit any sum in compliance with the provisions of Section 129E of the Customs Act would cause them undue financial hardship as they have suffered a loss of only Rs. 19,252 when their total receipts are more than Rs. 18.60 lacs. We, therefore, direct the Applicants to deposit a sum of Rs. 15 lacs within 8 weeks from today and on complying with this direction there shall be waiver of pre-deposit of remaining amount of duty and the entire amount of penalty and the recovery of the same will remain stayed during the pendency of the appeal. The matter will come up for reporting compliance on 28.1.2004. Any failure to comply with this direction will result in dismissal of their appeal without any further notice.