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TMI Blog2007 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... l and is run on 'no-profit' basis. It is located at village Ghanapur, about 40-50 kms away from the city of Hyderabad. It started its activities in the year 1993. It has specialized in treatment of heart and related ailments having the latest equipments and specialist doctors. 4.In the year 1992-93, the appellant-Society imported certain medical equipments for the use in its charitable hospital. According to the appellant, under Notification No. 64/88-Cus., dated March 1, 1988, exemptions were granted to hospital equipments imported by specified category of hospitals (charitable) subject to certification by Directorate General of Health Services (DGHS). The table in the notification classified hospitals in four categories. According to the appellant, it falls under Para No. 3 of the table of notification. 5.The appellant, however, along with several other hospitals, had applied for the benefit of exemption notification not under para 3 but para 2 of the table. The benefit of exemption was granted. Since the Society was also entitled to exemption under para 3 of the table, an application was made to DGHS highlighting the fact that the appellant is a non-profit organization and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the application of the appellant on merits and rejection of application only on the ground that the appellant had earlier applied under category 2 and, therefore, it was not open to it to apply under category 3 and the application was not tenable was illegal and contrary to law. The learned counsel for the appellant further submitted that it was only because of rejection of application on the ground of maintainability that it made a limited prayer before the High Court to direct the Deputy Director General. (Medical), DGHS to consider and decide the application of the appellant on merits. By not doing so, the error of law committed by the Deputy Director General (Medical), DGHS had been repeated by the High Court and hence both the orders are liable to be set aside. It was submitted that the Deputy Director General (Medical), DGHS may be asked to consider the matter of the appellant on merits as to whether it would be entitled to exemption under category 3. 9.The learned counsel for the respondents, on the other hand, supported the order of the authority relying on an affidavit in reply filed by the Assistant Director General (M) who stated that the representation of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drugs. Exemption was granted to him under one item. He, thereafter, filed a revised classification list categorizing its bulk drugs under the other Head claiming more benefit. The claim was rejected on the ground that the appellant had not claimed the benefit of exemption at the time of filing the classification list and subsequently it could not be done. The appellant approached this Court. 13.Allowing the appeal and setting aside the order, this Court held that if no time is fixed for the purpose of getting benefit under the exemption notification, it could be claimed at any time. If the notification applies, the benefit thereunder must be extended to the appellant. The Court held that the authorities as well as the Tribunal were not right in holding that the appellant ought to have claimed the benefit of the notification at the time of filing of classification lists and not at a subsequent stage. The Court then stated; "...There can be no doubt that the authorities functioning under the Act must, as are in duty bound, protect the interest of the Revenue by levying and collecting the duty in accordance with law - no less and also no more. It is no part of their duty to deprive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant such benefits if the applicant is otherwise entitled to such benefit. Therefore, non-consideration on the part of the Deputy Director General (Medical), DGHS to the prayer of the appellant in claiming exemption under category 3 of the notification is illegal and improper. The prayer ought to have been considered and decided on merits. Grant of exemption under category 2 of the notification or withdrawal of the said benefit cannot come in the way of the applicant in claiming exemption under category 3 if the conditions laid down thereunder have been fulfilled. The High Court also committed the same error and hence the order of the High Court also suffers from the same infirmity and is liable to be set aside. 17.Strong reliance was placed by the respondents on a decision of this Court in Mediwell Hospital & Health Care Pvt. Ltd. v. Union of India & Ors., (1997) 1 SCC 759 : JT 1997 (1) SC 270. In Mediwell Hospital, the Court was considering the very same notification 64/88 and grant of exemption to hospital equipments imported by specified category of hospitals. The Court held that an Individual Diagnostic Centre if covered by the notification, could claim import of equipments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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