TMI Blog2002 (6) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... e customs duty was withdrawn. 4.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Services challenging an order dated 19-12-1997 by which also the exemption granted in respect of the customs duty was withdrawn. 5.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petition also an order dated 4-11-1997 is challenged by which the exemption granted in respect of the customs duty was withdrawn. 6.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 quality medical equip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 The letter dated 25-11-1997 by which the exemption was withdrawn was written to M/s. Jaya Diagnostic Research Centre Ltd.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 import certain medical equipments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord 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 dealt with after the facts relating to other writ petitions are discussed. 11. In W.P. No. 3109 of 1998 also the petitioner claims that Godavari CT Scanning Centre is a division of Swatantra Multi Specialty Hospital and was incorporated on 14-4-1991. M/s. Swatantra Multi Specialty Hospitals runs a multi specialty hospital in Rajahmundry with an intake of 165 in-patients/beds. Out of the said 165 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew 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 respondent issued proceedings dated 9-7-1997 directing the petitioner to show cause as to why customs duty exemption certificate issued to him under notification No. 64/88 shall not be withdrawn. It was stated in the show-cause notice that the petitioner was only a diagnostic centre/laboratory not having indoor patients and thus not fulfilling the obligation of providing free indoor treatment to all patien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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) that the hospital equipment in respect of which the exemption is claimed under this notification is not manufactured in India; and (ii) that the hospital equipment in respect of which the exemption is claimed is necessary for running or maintenance of the hospital. In the explanation at the end of the notification it has been stated, For the purposes of this notification, the expression Hospital includes any Institution, Centre, Trust, Society, Association, Laboratory, Clinic and Maternity Hom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition 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 wherein they had agreed to comply with these conditions, but these conditions were impossible for them to be followed because they were not at all running any hospitals. 16. Learned Standing Counsel for Central Government appearing for the respondents submits that this controversy has already been resolved by various judgments of the Courts. One of the judgments referred is Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India Ors - 1997 (89) E.L.T. 425 (S.C.) = AIR 1997 SC 1623. In this case the High Court had dealt with a diagnostic centre and had come to the conclusion that the appellant was merely a diagnost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided 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 we had dismissed S.L.P. (C) No. 23964 of 1996 on 16-12-1996, another 2-Judge Bench appears to have granted relief in a similar matter which may give impression that the view taken therein is different. It is, therefore, appropriate that the possible ambiguity or uncertainty on the question of law should be removed by judgment of a 3 Judge Bench. We, therefore, recall our order dated 16-12-1996 dismissing the special leave petition and direct that the Special Leave Petition be listed for hearing before a 3-Judge Bench. The papers be placed before the Hon'ble C.J.I. for constituting the Bench. 18. Thereafter the matter came ..... X X X X Extracts X X X X X X X X Extracts X X X X
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