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TMI Blog2001 (9) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to which the exemption was granted to it. Enquiries were taken up by the Commissioner of Customs, Air Cargo Complex, through which the goods are imported. In the course of enquiry the hospital submitted a statement of patients treated by it for the period 1991 to 1998. This showed that one of the conditions prescribed in the notification, that 40% of the outdoor patients should be given free treatment, had not been complied with. The department thereupon made further enquiries. Kishore Pandya, Chief Accountant of the hospital accepted in his statement that the condition was not complied with for the years 1991-92 onwards till 1997-98 except for the year 1994-95 and stated that the hospital was ready to pay the duty on account of its failure. S.M. Masurekar, Administrator of the hospital, also accepted this failure and expressed readiness to pay duty. 2. Notice was issued to the hospital and Masurekar proposing confiscation of the medical equipment under clause (o) of Section 111 of the Act and penalty under Sections 112 and 114A on the hospital and on Masurekar. After hearing the parties and considering the cause shown the Commissioner ordered confiscation of the equipme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector - 1997 (95) E.L.T. 246 and Vadilal Industries Limited v. Collector - 1998 (99) E.L.T. 513 are relied upon. It is also contended that for the conditions of the notification have been displayed by means of a notice on the board that the hospital would provide free treatment to patients. It is contended that the judgment of the Supreme Court in Mediwell Health Care Pvt. Ltd. v. Union of India - 1997 (89) E.L.T. 425 would not apply to the facts of the case. 5. The conditions in the table to the notification, material for consideration in this appeal, contained in Paragraphs 2 and 4 of it, are reproduced below : 2. All such hospital which may be certified by the said Ministry of Health and Family Welfare in each case to be run for providing medical, surgical or diagnostic treatment not only without any distinction of caste, creed, race, religion or language but also, - (a) free, on an average, to at least 40% per cent of all their outdoor patients; and ........ 4. Any such hospital which is in the process of being established and in respect of which the said Ministry of Health and Family Welfare is of opinion - (i) that there is an appropriate programme for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, when it was certified to be run or substantially aided by an approved charitable organisation ceased to do so after the certification would not be entitled to the benefit of notification. That is what the Supreme Court has clearly and categorically said with respect to the hospitals of the type specified in paragraph 2 in its judgment in Mediwell Hospital Health Care Pvt. Ltd v. Union of India - 1997 (89) E.L.T 425. Emphasis in paragraphs 12 and 13 of this judgment upon the continuing liability by such hospital after getting the benefit of the notification is significant and will have to be kept in mind. 7. The applications that the hospital made to the Directorate General of Health Services Maharashtra, for issue of a certificate in order to enable it to avail the benefit of the notification, signed by S.M. Masurekar, Administrator, indicates the number of patients attended and treated free in the OPD in the years 1988-89 to 1990-91 to be 100% and says that indoor facilities were provided freely. The declaration signed by Masurekar also read Certified also that the above equipment will be utilised free of charge in respect of patients who are entitled to free treatment as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are therefore unable to comment upon this decision. However, we reproduce below what the Commissioner has observed with regard to this plea raised before him. I have gone through the judgment and it states that in view of the Supreme Court judgment in the case of Mediwell Hospital Health Care Pvt. Ltd. v. Union of India the condition of giving free treatment to 40% OPD patients and 10% IPD patient is an ongoing commitment and any shortfall in one year can be fulfilled in the subsequent year subject to the life span of the imported equipment. However, the appeal does not contend that the Commissioner s finding is incorrect. If his understanding is correct his reasoning speaks for itself. 10. The synopsis that was handed over after the hearing by Mr. Shyam Diwan, Advocate, too, only narrates the sequence of events leading to the hearing of the appeal. It also enclosed a copy of the decision of the Tribunal in Lions Cancer Detection Centre Trust Others v. CC in Appeal C/292 and others/99, this decision has not been published; apparently there have been difference of opinion among the two members on one of the issue involved relating to confiscation of goods. The Members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in Lions Cancer Detection Centre does not indicate any basis upon which the Director General of Health Services granted certificates to the hospital of it considered; nor is it possible to say that those hospitals claimed that they provided 100% free treatment as the hospital before us did. We must keep in mind that the subject-matter of appeal in Lions Cancer Detection Centre did not directly or by implication extent to consideration of the applicability of the condition contained in paragraph (3) of the notification relating to free treatment to prescribed number of patients. 12. The decision of the Tribunal therefore does not lay down any ratio that where there has been a certificate by the Director General of Health Services there should not be any penalty. On the facts before it, it concluded that differential treatment meted out to Director General of Health Services, noting that the Commissioner had only cautioned it, and stated that there should be leniency for the hospital. The facts before us being completely different that decision appears to us entirely irrelevant. 13. The notification requires certificate of two kinds. The hospital in question has to be certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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