1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Civil Application No. 5561 of 2008 in Custom Appeal No.1/2005 (M/s National Heart Centre and Hypertension Clinic Nagpur .vs. The Commissioner of Customs and ors. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders ======================================= Mr. K. H. Deshpande, Senior Advocate for Appellant. Mr. S.K. Mishra, ASG for Respondents. .......... CORAM : K.J. ROHEE &, PRASANNA. B. VARALE, JJ. DATED : OCTOBER 07, 2008 1. Heard counsel for the parties. 2. The appellant M/s National Heart Centre and Hypertension Clinic, Nagpur imported computerised Stress Systems with Tread Mill on 9.4.1990. The cost thereof is Rs.6,89,675/-. 3. On 19.6.2000 Joint Commissioner ( A & R), New Delhi issued notice to the appellant alleging that there was default in fulfilling post-importation obligation; that the benefit of exemption of duty was not available and calling upon the appellant to show cause as to why the goods imported should not be confiscated; custom duty of Rs.7,95,051/- should not be demanded and penalty should not be imposed. 4. The appellant submitted reply to the show cause 2 notice denying the allegations. However, order confirming the demand was passed. The Appellate Tribunal maintained the said order. Ultimately demand notice dated 31.1.2005 was issued to the appellant by respondent no.3- The Assistant Commissioner of Customs (Import Group), New Delhi calling upon the appellant to deposit custom duty of Rs.7,95,051/- along with interest thereon. The appellant challenged this demand. 5. During the pendency of the appeal, the appellant moved the present Civil Application No. 5561/2008 praying that the respondents be directed to calculate the demand of custom duty by taking into consideration all the relevant circulars and the provisions of the said Act. This prayer was strongly opposed by the learned counsel for the respondents. While doing so, it was contended on behalf of the respondents that once the appellant claimed exemption under Notification No. 64/88 dated 1.3.1988 and when it is found that the appellant has not complied with the conditions given under the said Notification, the appellant cannot revert to Notification No. 65/88 dated 1.3.1988 or Notification No. 140/90 dated 20.3.1990 in oder to take a chance to get rid of violation of the conditions in Notification No. 64/88. 6. It was submitted by the learned counsel for the appellant that it is permissible for the appellant to revert to Notification No. 65/88 or 140/90 in view of the decision in Share Medical Care .vs. Union reported in 2007 (209) E.L.T . 321 (SC) . We have considered this submission made 3 by the learned counsel for the appellant. However, we are unable to accede to it because in the present case the appellant initially claimed exemption under Notification No.64/88 unlike in the case cited supra where no benefit was claimed under a particular Notification at initial stage and hence it was held that the applicant therein was not debarred, prohibited or estopped from claiming benefit at a later stage. 7. In the result, we find that at this stage the appellant is not entitled to make the prayer directing the respondents to calculate the demand of custom duty by taking into consideration Notification other than Notification No. 64/88 dated 1.3.1988. The application is, therefore, dismissed. JUDGE JUDGE halwai