Commissioner Of Customs, New Delhi vs C.T. Scan Research Center (P) Ltd.

2. Being aggrieved and dissatisfied by judgment and order dated 28th March, 2001 passed by the Central Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal") in Appeal No. C/239/2000-NB (DB), the Department has filed this appeal.

3. Respondent imported the goods and cleared them at nil duty on the basis of the Notification No. 64/88-Customs, dated 1-3-1988. A show cause notice was issued on 17-9-1998 on the ground that respondent was not complying with the post importation conditions laid down by the notification for the import of goods at nil rate of duty, namely, free service at least to 40% of the outdoor patients etc. A contention was raised by the respondent that notice was issued after five years and therefore, the demand of duty was time barred as per the provisions of Section 28 of the Customs Act. That contention was accepted by the Tribunal on the ground that as the notice was issued beyond the permissible limit of five years provided under Section 28 of the Customs Act, demand was time barred. The Tribunal also arrived at the conclusion that show cause notice was issued by invoking the provisions of extended period of limitation by the Assistant Commissioner and hence it was without jurisdiction as per Section 28(1) of the Customs Act.

4. At the time of hearing of this matter, teamed Counsel for the appellant submitted that in such cases Section 28(1) is not applicable and the issue is decided by the decision rendered by this Court in Commissioner of Customs (Import), Mumbai v. Jagdish Cancer and Research center - .

5. In the aforesaid decision, this Court specifically held that in such cases provisions of Section 28(1) of the Customs Act were not attracted because the said section covers cases of duty not levied, short levied or erroneously refunded etc. Hence, the impugned judgment and order passed by the Tribunal requires to be set aside as there was no question of complying with the provisions of Section 28(1) of the Customs Act.

6. In the result, appeal is allowed, impugned judgment and order passed by the Tribunal is set aside. For the other issues which are required to be dealt with in the appeal, the matter is remitted to the Tribunal for deciding the same in accordance with law. It would be open to the parties to raise all relevant contentions before the Tribunal which are sought to be raised before this Court. There shall be no order as to costs.