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TMI Blog2002 (6) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... the customs duty was withdrawn. 4. W.P. No. 1533 of 1998 has been filed by M/s. Medinova Diagnostic Services challenging an order dated 19-12-1997 by which also the exemption granted in respect of the customs duty was withdrawn. 5. W.P. No. 33257 of 1997 has been filed by Kailash Diagnostic and Rehabilitation Centre. In this writ petition also an order dated 4-11-1997 is challenged by which the exemption granted in respect of the customs duty was withdrawn. 6. All these writ petitions raise same question of law and fact and the writ petitioners are aggrieved of the similar orders. 7. Petitioner in W.P. No. 1544 of 1998 is the Managing Partner of Medwin Hospitals, Ashoknagar, Hyderabad. He submits that the Medwin hospital is a division of Jaya Diagnostic and Research Centre Limited and the same had been established in the year 1990. It is further submitted that the hospital is a 400-bed super-speciality hospital having various facilities, treating outpatients and inpatients since the date of establishment. It is further submitted that realizing the fact that sophisticated medical equipment was not indigenously made and therefore it was necessary to import qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. 10. W.P. No. 1544 of 1988 has been filed by Medwin Hospital. It claims to be a division of Jaya Diagnostic and Research Centre Ltd., but there is nothing on record to show, as a matter of fact, that the Medwin hospital is a division of Jaya Diagnostic and Research Centre Ltd. The letter dated 25-11-1997 by which the exemption was withdrawn was written to M/s. Jaya Diagnostic Research Centre Ltd. Certificate of incorporation which has been placed on record issued by the Registrar of Companies, Andhra Pradesh shows that Jaya Diagnostic and Research Centre Ltd. is incorporated on 21-9-1987. There is no mention of any hospital. Certificate of commencement of business was also issued in the name of Jaya Diagnostic and Research Centre Ltd. A letter of exemption was given on 23-12-1988 which has been relied on by the petitioner was written by the Secretary to Government, Health, Medical and Family Welfare Department, Hyderabad to the Director General of Health Services, Ministry of Health and Family Welfare, New Delhi in which it was stated that he was forwarding the application of Jaya Diagnostic and Research Centre Ltd., Hyderabad for grant of exemption to enable them to impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for this purpose at least 10% of all the hospital beds reserved for such patients; and (4) At reasonable charges, either on the basis of the income of the patients concerned or otherwise, to patients other than those specified in clauses (2) and (3) above;" These facts relating to this case have been given in detail because we do not find anywhere there is any record to show that Medwin hospital is a division of Jaya Diagnostic & Research Centre Ltd. The Party aggrieved by the order impugned is Jaya Diagnostic & Research Centre Ltd. and they have not filed any writ petition. Without showing the connection between Medwin hospital and Jaya Diagnostic & Research Centre Ltd. this writ petition is not otherwise maintainable. The exemption had been granted to Jaya Diagnostic & Research Centre Ltd. and it has been withdrawn from it. Medwin hospital has nowhere been in picture right from 1988 to 1997. This writ petition is liable to be dismissed on this count alone. The other grounds which related to the interpretation of the notification No. 64/88, dated 1-3-1988 will have to be gone into while considering the import of that notification and would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the petitioner that the reports from the State Governments have not been received. The Petitioner was advised to file an application along with recommendations of the State Government. 2nd respondent on the representation of the petitioner forwarded the report on 18-5-1996 and recommended for grant of installation certificate. 1st respondent vide letter dated 23-4-1996 informed the petitioner that in view of the stay granted by the Court for issuance of the installation certificate under notification No. 64/88, it was not possible to consider the grant of such a certificate. While the matters stood thus, the 4th respondent issued a notice on 30-9-1996 proposing to make a provisional assessment on the equipment imported without extending the benefit of notification No. 64/88. The petitioner was directed to pay a sum of Rs. 38,49,604/-. Since the goods were charged solely due to the inaction of the 1st respondent and the 4th respondent was threatening coercive action for realizing the duty, the petitioner filed a writ petitioner and directed the 4th respondent not to take coercive steps pending further orders. This writ petitioner is also pending in the Court. Thereafter the 1st re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all equipment, apparatus and appliances, including spare parts and accessories thereof, but excluding consumable items (hereinafter referred to as the "hospital equipment"), the import of which is approved either generally or in each case by the Government of India in the Ministry of Health and Family Welfare, or by the Directorate General of Health Services to the Government of India, as essential for use in any hospital specified in the Table below, from (i) the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975); and (ii) the whole of the additional duty leviable thereon under Section 3 of the said Customs Tariff Act. Paragraph 2 of the notification is important which lays down. "In approving the import of any hospital equipment under paragraph 1, regard shall be had to the following factors namely:- (i) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, religion or language, but also, (a) free, on an average, to at least 40 per cent of all their outdoor patients; and (b) free to all indoor patients belonging to families with an income of less than rupees five hundred per month, and keeping for this purpose at least 10 per cent of all the hospital beds reserved for such patients; and (c) at reasonable charges, either on the basis of the income of the patients concerned or otherwise, to patients other than those specified in clauses (a) and (b)." The second condition imposed was that free treatment had to be given to all indoor patients belonging to families with an income of less than rupees five hundred per month and for this purpose 10 per cent of all the hospital beds had to be reserved for such patients. None of the petitioners has any indoor facility and obviously so and they were not admitting any patients and they were using their institutions as diagnostic institutions and not as treatment institutions. It appears that they had given false undertaking while getting the exemption. The record has been perused wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion, as aforesaid, we have no doubt in our mind that the order of Respondent No. 2 refusing to grant certificate to the appellant is liable to be struck down and the High Court also committed serious error in rejecting the writ petition filed by the appellant." 17. This is the first judgment of the Supreme Court which was delivered by a Bench of two Judges. Thereafter another matter came before the Supreme Court in M/s. Faridabad CT. Scan Centre v. D.G. Health Services & Ors - JT 997 (8) 171. This judgment was delivered by a Bench of three Judges of the Supreme Court. Whereas the earlier case referred to above was decided on 17-12-1996, this case was decided on 15-9-1997. This judgment reviewed the earlier judgment. Earlier a Special Leave Petition was dismissed by a Bench of two Judges on 16-12-1996. Later on it was found that another Bench of two Judges in a similar matter Mediwell Hospital & Health Care Pvt. Ltd. v. Union of India & Ors. (1st supra) had taken a different view in the matter. Therefore, the order dismissing the Special Leave Petitioner was recalled and the reasons were given in an order dated 8-8-1997 by a Bench of two Judges. The reasons were, "After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nara v. Union of India - 1999 (111) E.L.T. 327 (Kar.), Peoples Union for Civil Liberties, New Delhi v. Union of India & Ors. - C.W.P. No. 409 of 1996 (Delhi High Court), CT Scan Research Centre Pvt. Ltd v. Director General of Health Services & Ors - C.W.P. No. 6164 of 1998 (Punjab & Haryana High Court), Chaparral Health Services Ltd. v. Union of India & Ors - W.P. No. 35286 of 200 & batch (Karnataka High Court) [2001 (130) E.L.T. 34 (Kar.)], M/s. Nilagiri Cancer Centre (P) Ltd., v. Director General of Health Services & Ors - W.P. No. 16050 of 1999 (Madras High Court) , and Commissioner of Customs (Import), Mumbai v. M/s. Jagdish Cancer & Research Centre - 2001 (132) E.L.T. 257 (S.C.) = JT 2001 (6) SC 244, but in view of the judgment of the 3-Judge Bench of the Supreme Court in M/s. Faridabad CT. Scan Centre v. D. G. Health Services & Ors. (2nd supra) the position is crystal clear and the matter is not res integra. The petitioners have referred to the judgments viz., K.P. Varghese v. I.T.O. (SC) - (1981) 131 I.T.R. 597, India Extrusion v. Commr. of Comml. Taxes (A. P.) - (2001) 124 STC 474, P.P.P. Industries v. Commissioner of Industries - (1994) 92 STC 110, and State of M.P. v. G.S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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