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TMI Blog2018 (3) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... are allowed to breached with impunity and then glossed over by a paper exercise in the name of submitting of a so-called reply furnished by the petitioner in the present case, Annexure-V dated 4.7.2014 , which does not inspire any confidence. The failure on the part of the petitioner to bring forth the said reply and the relevant data with evidence before the concerned Authority during the course of personal hearing on 5th and 6th of May 2014, speaks volumes against the petitioner-Institutions and shows the lackadaisical manner in which it sought to fortify its claim for exemption of customs duty in the aforesaid manner. The gross abuse of customs duty exemption by these Institutions and as many as 392 Institutions out of 396 given such exemption lost their CDECs, defeats the very purpose for which such exemption was given, for the avowed purpose of providing free medical aid to the poor sections of the Society. This Court does not find any illegality, perversity or arbitrariness in the impugned order passed by the respondent-Authority which could be quashed on the anvil of Article 14 of the Constitution of India - petition being devoid of merits, is dismissed. - Writ Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs, Mangalore vide Annexure-B dated 2.3.2015 to an extent of `4,52,30,472/-. The relevant portion of the impugned order Annexure-A dated 23.1.2015 passed by the Deputy Director General (Medical) in the Directorate General of Health Services, Ministry of Health and Family Welfare, New Delhi is quoted below for ready reference:- In this connection, the Directorate wrote letters to the Additional Solicitor General (ASG) and Government Counsel (GC) to find out whether any of the petitioner hospital has opted for it or not. But none of the hospitals opted for it; the Directorate was directed by the Hon ble Court to give opportunity to the petitioners on the lines of judgement passed by Supreme Court on 24.10.2007 in Sir Ganga Ram Trust Society s case. A personal hearing was held under the chairmanship of Dr.(Prof.) B.L.Sherwal, Deputy Director General (M) on 05.05.2014 06.05.2014 at Senior Regional Director (H FW) s office in Koramangala, Bangalore to discuss the matter relating to medical equipments batch cases in writ appeal Nos.2369-2370/1999 and other writ petitions filed by KMC Group of hospitals and others before the Hon ble High Court of Karnataka at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and indoor patients for a period of 20 years commencing from 1.1.2012, they would continue to have the said exemption of customs duty. The said Scheme evolved by the Division Bench of this Court was made subject to, the approval by the Central Government on or before 31.10.2011 and if either (i) such Affidavits opting for the alternative Scheme was not furnished by the petitioner-Hospitals or (ii) such alternative Scheme was not approved by the Central Government in both the cases, Authorities concerned were left free to take action against the Hospitals for recovery of customs duty in question revoking the exemption given under the Notification No.64/88-Cus. dated 1.3.1988. The relevant portions of the said judgment of Division Bench of this Court is quoted below for ready reference:- 7. Keeping in mind the aforesaid aspects, in conjunction with the suggestions made at the hands of the learned counsel for the appellants/petitioners herein, and with the approval of the Additional Solicitor General of India, we have drawn a proposed alternative scheme, as a substitute for the proceedings initiated by the respondents. This proposed alternative scheme would provide succour to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncing from 01.01.2012, wherein, each hospital would provide free medical facilities to inpatients as already noticed above. In determining the number of inpatients entitled to free medical treatment, reference shall be made to the total inpatients treated at the hospital during the preceding year; 20% thereof shall constitute the number of patients who would be entitled to free treatment in the year in question. The same principle will be adopted annually, in each succeeding year. Wherever, there is an expected shortfall in a particular year, it shall be open to the hospital(s) in question to require government hospitals, to refer BPL card-holders, for free inpatient treatment. Fourthly , hospitals seeking the benefit of the proposed modified scheme, would announce through notices affixed at prominent places at the hospital, the facility of such free medical inpatient benefits, to persons who possess BPL cards. Due publicity shall also be provided on Prasar Bharathi by respondent No.1. Simultaneously, press releases shall be issued by the State of Karnataka, periodically informing the general public of the free medical inpatient facility, available at the hospitals in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent authority in consonance with the order passed by the Supreme Court on 24.10.2007 in Sir Gangaram Trust Society and another vs. Union of India and others (Civil Appeal No.7284/2005). Likewise, if the proposed alternative scheme is not approved by the Central Government by 31.10.2011, those who have opted for the proposed alternative scheme, shall also be proceeded against by the concerned competent authority in consonance with the order passed by Supreme Court on 24.10.2007 in Sir Gangaram Trust Society s case (supra). In such of the matters which have to be proceeded with, in terms of the order passed by the Supreme Court, we hope and expect, that the final orders shall be passed within six months from today. This is imperative, as we are informed, that in many cases proceedings under the notification dated 01.03.1988 came to be initiated 18 years ago. 6. It appears that the Central Government did not take any decision in the matter either approving or not approving such alternative scheme evolved by the Division Bench of this Court, nor the petitioner- Hospitals filed the Affidavits opting for the said alternative Scheme and while the matter rested there, in 2014, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Division Bench of this Court in the judgment dated 19.7.2011 about the approval of alternative scheme evolved by the Division Bench of this Court, she however submitted that the said judgment itself permitted that if the said alternative scheme was not approved by the Central Government Authorities concerned before 31.10.2011, they could proceed against the petitioner-Institutions and other similarly situated Institutions for revocation of CDECs or withdrawal of exemption from customs duty and that is why he proceedings were undertaken in the year 2014 by issuing the notice vide Annexure-U dated 15.4.2014 and this has finally resulted in the impugned order Annexure-A dated 23.1.2015. 12. The learned counsel for the respondent- Union of India was also not able to point out any specific consideration of the reply filed by the petitioner- Institution vide Annexure-V dated 4.7.2014 in whose Office, the Deputy Director General (Medical) was to consider the case of petitioner-Institutions on 5th and 6th of May 2014 as stipulated in the notice Annexure-U dated 15.4.2014. There is no mention of the said reply Annexure-V dated 4.7.2014 in the impugned order Annexure-A dated 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of them submitted any documentary proof in support of their claim of exemption establishing with the relevant record and evidence that they have actually provided 40% of services to the poor sections of the Society free of cost. The burden of proof obviously was upon the persons claiming such exemption to prove and satisfy the conditions of exemption and it could be proved only with the relevant evidence. 18. The representative of the present petitioners before this Court are also said to have personally attended these hearings before the respondent-Deputy Director General (Medical) on 5th and 6th of May 2014, but had failed to establish with the relevant evidence before the concerned Authority referring to its reply Annexure-V dated 4.7.2014 that it really complied with the conditions of exemption, in letter and spirit with data and record before the concerned Authority. If it is factually an incorrect position noted by the said Deputy Director General (M) in the impugned order that none of the appellants/petitioners have submitted any documentary proof in support of the claim, the petitioners could have immediately approached the said Authority pointing out the existence of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of providing free medical aid to the poor sections of the Society. 21. The petitioners, therefore, do not deserve any liberal or sympathetic view in the matter which is even otherwise prohibited by the settled canons of interpretation of taxing statutes or exemption Provisions, viz., to strictly construe the same. 22. This Court does not find any illegality, perversity or arbitrariness in the impugned order passed by the respondent-Authority which could be quashed on the anvil of Article 14 of the Constitution of India. There is no breach of principles of natural justice, as the petitioners and the whole lot of them were provided adequate opportunity to establish their claims, but they not only failed to avail such opportunity before the concerned Authority, but the concerned Authority noted that despite personal presence of 22 representatives, none of them have produced any documentary proof including the representatives of petitioner-Hospital. This not only surprises and shocks the conscience of this Court as to the nonchalant manner in which the petitioner- Institutions took their exemption from customs duty for granted, without satisfying the conditions therefor. 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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