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TMI Blog2018 (3) TMI 1735X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier judgment dated 21-9-2001 in Writ Petition No. 2581/2001, between parties and judgment of Madras High Court reported in 2001 (133) E.L.T. 58 (Mad.) (Apollo Hospitals Enterprises Ltd. v. Union of India and others), were looked into and interim relief in terms of prayer clause (iii), staying operation and effect of impugned order dated 1-3-2004, came to be granted. This interim order continues to operate even today. With the result, C.D.E.C. has not been withdrawn and petitioners continued in custody of two machines imported by them. 3. The basic facts are not in dispute. Petitioners in 1989-90 wanted to purchase two machines, viz. Echo Cardiograph with colour mapping with standard accessories and computerized stress system with treadmill. The machines needed to be imported. Petitioners got benefit of Notification No. 64/88 issued on 1-3-1988. Subject to terms and conditions stipulated therein the import of these two machines from Norway was exempt from customs duty. The Echo Cardiograph reached Bombay on 5-5-1990 from Norway and duty of Rs. 24,96,860/- otherwise would have been payable on it. Computerized stress system reached Delhi on 24-4-1990, from U.S.A. and customs d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice and then proceeded further as per Customs Act. The Hon'ble Apex Court also declared that observations of High Court would not come in the way of petitioners. 6. Because of these orders of Hon'ble Apex Court dated 6-8-2001, petitioners filed their detailed reply to show cause notices. 7. In the meanwhile, in view of inspection by Customs Authorities, two orders were passed and both machines were attached and seized. These orders are dated 13-3-2002 and 20-9-2002. This action has been independently questioned by petitioners under the Customs Act and after decision by Customs, Excise and Gold (Control) Appellate Tribunal (C.E.G.A.T.), Customs Appeal No. 1/2005, has been filed before this Court and is pending for final hearing. 8. It appears that Respondent No. 1 - D.G.H.S. on 24-2-2000 sought certain information from petitioners about fulfilment of the conditions in Notification No. 64/88. On 30-8-2000, said authority passed an order and withdrew C.D.E.C. This order and action dated 30-8-2000 then formed subject matter of Writ Petition No. 2581/2001 between parties and on 21-9-2001 High Court set aside that action [2003 (151) E.L.T. 486 (Bom.)]. Respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Rules were made available for perusal but, the same have been erroneously discarded. 14. It is urged that in impugned order, there is a reference to findings of three members inspection team deputed by Rosha Committee, but, then those findings were never made available to petitioners. 15. Learned Counsel further submits that finding in impugned order that patients attending camps conducted by petitioners, cannot be taken into consideration to calculate required percentage of 40% or 10%, is erroneous and unsustainable. By analyzing data in charts which formed part and parcel of reply to show cause notices, effort is made to demonstrate how outdoor patients have been treated or then patients at camps were admitted as indoor patients. Submission is, in absence of necessary application of mind by respondent no. 1, entire order is vitiated. 16. Petitioners rely upon judgment of Madras High Court in case of Apollo Hospitals Enterprises Ltd. v. Union of India and others (supra), to submit that exemption Notification No. 64/88 stood rescinded in 1994, and as such, after its expiry there was no need or question of its compliance in year 2000, when action was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. v. Union of India and others (supra), has been found not laying down the correct law. The Hon'ble Apex Court has held that Article 14 of the Constitution of India cannot be resorted to perpetrate wrong orders or wrong practices. 21. To submit that there is no impact of repeal of exemption Notification No. 64/88 in present matter, contention advanced by him is, as both machines are in use and have been imported with C.D.E.C., obligation to continue to comply with conditions (a) and (b) of Paragraph No. 2 survives even after 1994. He states that as such there is no question of any delay in the matter. He also invites our attention to findings recorded by Learned Single Judge of Madras High Court in the case of M/s. Apollo Hospitals Enterprises Ltd. v. Union of India and Others (supra), in an effort to demonstrate that consideration therein runs contrary to the continuous obligation recognized by Hon'ble Apex Court in Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India and Others (supra), and other judgments. 22. He states that burden to prove compliances with clauses (a) and (b) of Paragraph No. 2 was upon petitioners and they ought to have produced rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 64/88 has been looked into and then there is reference to judgment of Karnataka High Court in case of Chhaparal Health Services v. Union of India (Writ Petition Nos. 35286/2000 and 3740/2001) [2001 (130) E.L.T. 34 (Kar.)]. It is observed that only consequence flowing from repeal notification is that future imports made by the hospitals would not be exempt. Then there is reference to judgment of Hon'ble Supreme Court in case of Mediwell Hospital and in case of Commissioner of Customs v. Jagdish Cancer Institute. Thereafter, in sub-paragraph (ix), Division Bench's judgment of Punjab and Haryana High Court has been referred. In sub-para (xii) of para 14, the impugned order, findings of fact that petitioners have not maintained hospital records and submission of Form 3-C of Income-tax Rules, its rejection appears. 25. It is not in dispute before us that the petitioner was not given copy of report submitted by the team sent for inspection on deputation of Rosha Committee. Similarly, report of C.D.E.C. Committee drawn extensively in Paragraph No. 14 of the impugned order, is also never made available to them. 26. The petitioners have along with their reply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers and seized or taken over by them, after proper panchnama. It mentions in later Paragraph No. 5A on the strength of OPD/Daily cash register, the number of patients treated during this period with free patients, during that period. The percentage of such free treatment is also on record. This chart is also made use of in second show cause notice. The assertions of petitioner that it was not having documents and the same were not produced by Respondent No. 1, is not in dispute before this Court. 29. Thus, when there were two sets of contention before Respondent No. 1, Respondent No. 1 ought to have verified original records and thereafter recorded a finding on correctness or otherwise of assertions of the petitioners. This exercise also has not been undertaken. We find that Respondent No. 1 has mechanically acted upon the report of team deputed by the Rosha Committee and the findings of C.D.E.C. Committee. We therefore, find that there is no independent application of mind by Respondent No. 1 to the controversy. 30. Petitioners gave specific figures of percentage and then, also claimed benefit of persons/patients who visited their camps. The question - Whether there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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