1998 (9) TMI 224 - AT - Customs

Hospital equipment - Benefit of exemption under Notification No. 64/88-Cus., dated 1-3-1988 and No. 279/83-Cus., dated 30-9-1983 not available.

Issues Involved:
1. Eligibility for concessional duty under Notification Nos. 279/83-Cus. and 64/88-Cus.
2. Validity of the agreement between Gujarat Cancer Society and Dr. Viral C. Shah.
3. Compliance with conditions of the exemption notifications.
4. Time-bar of the demand.
5. Liability of financial institutions for duty payment.

Issue-wise Detailed Analysis:

1. Eligibility for Concessional Duty:
The Gujarat Cancer Society imported two machines and claimed the benefit of Notification Nos. 279/83-Cus. and 64/88-Cus. These machines were found installed in the premises of Shah Diagnostic Institution, a private entity. The Collector of Customs denied the benefit of concessional duty and confirmed a demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962, also ordering confiscation of the machines under Section 111(o) of the Customs Act, 1962, with a lenient redemption fine of Rs. One.

2. Validity of the Agreement:
The Gujarat Cancer Society argued that the agreement with Dr. Viral C. Shah was a management contract, not a transfer of ownership. The agreement allowed Dr. Shah to arrange finance, import the machines, and run them for ten years. The Collector of Customs found that the Gujarat Cancer Society had not taken financial responsibility for the machines, and the arrangement was primarily for Dr. Shah's benefit.

3. Compliance with Conditions of the Exemption Notifications:
The notifications required that 40% of outdoor patients be treated free of charge and that free treatment be provided to indoor patients from low-income families. The Collector of Customs found no evidence that these conditions were met. The Supreme Court's decision in Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India was cited, which held that diagnostic centers run by private individuals purely on a commercial basis are not entitled to such exemptions.

4. Time-bar of the Demand:
The Gujarat Cancer Society contended that the demand was time-barred as the machines were imported and assessed to duty under the relevant notifications without any suppression of facts. However, the Collector of Customs, referencing the Supreme Court's decision in Mediwell Hospital, held that the obligation to comply with the conditions of the notification is continuous, and thus, the extended period of limitation was applicable.

5. Liability of Financial Institutions:
The financial institutions, Can Bank Financial Service and Industrial Credit and Investment Corporation of India Ltd., argued that no duty demand was made against them in the show cause notice, only a penalty was proposed. The Collector of Customs confirmed the duty against them along with the Gujarat Cancer Society. The Tribunal found that the confirmation of duty against these financial institutions was not sustainable as no such demand was made in the show cause notice.

Conclusion:
The appeals by the Gujarat Cancer Society, Shah Diagnostic Institute, and Dr. Viral C. Shah were dismissed due to non-compliance with the conditions of the exemption notifications and the continuous obligation to meet these conditions. However, the appeals by the financial institutions, Can Bank Financial Service and Industrial Credit and Investment Corporation of India Ltd., were allowed as the duty demand against them was not sustainable in the absence of such a demand in the show cause notice.

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