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2012 (10) TMI 114 - GUJARAT HIGH COURTPublic charitable trust in process of establishing Hospital - rejection of request of the petitioner to categorise it under Category-1 of the Customs Notification No.64/1988 and for issuance of installation certificate - seizure without intimation of equipment imported in accordance with the exemption granted under Customs Notification No.64/1988 dated 1st March, 1988 - Held that:- Petitioner was granted exemption under Category-4 which is in respect of a hospital which is in the process of being established and which upon starting functioning would fall under any of the three categories viz. 1, 2 or 3. Application filed for placement in Category-1 under Notification No.64/1988, was rejected by second respondent on the ground that in the undertaking submitted by the petitioner it had chosen Category-2 and hence, the conditions applicable to Category-2 were applicable to the petitioner, which were not satisfied and had, accordingly, rejected the application. In the writ petition filed by the petitioner challenging the said order, this court had set aside the said order and directed the second respondent to consider the matter afresh, while holding that that if hospitals fall in Category-1, the conditions which are attached to the hospitals falling in Category-2 are not attracted. This is not a case where the petitioner was granted exemption under Category-2 and upon withdrawal of the same is claiming benefit under Category-1. Even after exemption is granted under one of the three categories, it is permissible to change the category, it would certainly be open to the petitioner at a stage prior thereto, to claim the benefit of category-1 instead of Category-2. A perusal of the impugned order makes it amply clear that the second respondent has decided the matter with a closed mind. The very basis of the impugned order, that is, the show-cause notice itself is contrary to the order passed by this court in the above referred writ petition inasmuch as the same calls upon the petitioner to show cause as to why it should not be considered only under Category-2 of Customs Notification No.64/1988 despite the fact that this court had categorically held that the respondent was required to consider the case and decide as to under which category the petitioner would fall. The impugned order passed by the second respondent is hereby quashed and set aside. The matter is restored to the file of the second respondent who shall decide the application afresh without taking into consideration the fact that in the undertaking given by the petitioner it had chosen Category-2. The second respondent shall examine as to whether or not the petitioner satisfies the requirements of Category-1 so as to be entitled to the benefit thereof.
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