- (1.) BY The Court.- Despite the fact that the present appeal has been taken up in revised call, no one out of four counsel for the respondents; Sarv Sri Deepak Seth, Sri Sidharth Dhaon, Sri R.S. Chauhan and Sri K.D. Nag, has responded.
(2.) HEARD Sri N. K. Seth, duly assisted by Sri H.P. Gupta. Instant appeal had been filed in the year 2007, but till date no objection has been filed on behalf of the opposite parties.
(3.) SRI N.K. Seth submits that the appellant institution runs an Eye Hospital at Sitapur. In the year 1987, the appellant had applied for issuance of Customs Duty Exemption Certificate on equipments imported from abroad. Accordingly, by Notification No. 64/88 dated 01.03.1988 exemption was granted by imposing certain terms and conditions. After issuance of Notification, the appellant imported the equipments and as per terms and conditions of the notification, appellants claim that they have been discharging their obligation by providing facility of free medical treatment to the patients as provided in the said notification. Subsequently, in the year 1997 a committee in the name and style of ROSA Committee was appointed to assess as to whether the terms and conditions of the notification were being complied with or not. On 13.01.2003 delegation of said ROSA Committee visited the hospital and submitted report indicating therein that the facilities as provided for providing free medical treatment in terms of the Notification while granting exemption were not being provided. On the basis of the said report show cause notice was issued to the appellant, to which the appellant tendered its reply. By means of the said reply, the appellant demanded copy of the report submitted by ROSA Committee, but the same, as alleged, was not supplied to the appellant. Thereafter, case was registered, and in the said case written submissions were filed by the appellant, specifically raising a plea that as per Section 28 of the Customs Act, limitation of levying penalty is one year or six months, and the terms and condition of exemption had been duly complied with, as such notices are liable to be discharged. Commissioner Import and General rejected the grounds taken and recorded finding that post import terms and conditions have not been complied with, as such duty was levied. Appeal preferred against the same was also dismissed. At this juncture, present F. A. F. O. has been preferred. Sri N.K. Seth emphatically laid emphasis on the provisions of sub-section(1) of Section 28 of the Customs Act, which reads as under: "Section 28.- Notice for payment of duties, interest etc.- (1) When any duty has not been levied or has been short levied or erroneously refunded, or when any interest payable has not been paid, part paid of erroneously refunded, the proper office may,- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months,from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which so short levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded, or when any interest payable has not been paid, part paid of erroneously refunded by reason of collusion or any wilful misconduct mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have the effect as if for the words "one year" and "six months", the wores five years were substituted. Explanation- Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or six months or five years, as the case may be." ;