TMI Blog2018 (3) TMI 1735X X X X Extracts X X X X X X X X Extracts X X X X ..... (marked as Annexure-L) with the petition. Again this proportion is little above 25%. In last chart at Page No. 216 (marked as Annexure-M) with the petition, this percentage is also reflected. Impugned order does not comment upon correctness of or relevance of position appearing in these charts. In absence of report of Rosha Committee or C.D.E.C. Committee, it is not very clear why these assertions of treatment of outdoor patients, indoor poor patients by petitioners have not been considered or relied upon by Respondent No. 1 in the impugned order - 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. Petitioners gave specific figures of percentage and then, also claimed benefit of persons/patients who visited their camps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii), 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 With the result, C.D.E.C. has not been withdrawn and petitioners continued in custody of two machines imported by them. 3.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 ₹ 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 duty payable upon it was assessed at ₹ 7,95,015/-. 4. In view of Customs Duty Exemption Certificate (C.D.E.C.) issued to petitioners, they were not required to pay any customs duty. This exemption however is subject to certain conditions which are stipulated in said Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew 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 - D.G.H.S. then approached the Hon ble Apex Court in Special Leave Petition No. 21446/2002. It was disposed of on 6-10-2003 without prejudice to rights and contentions of respondents therein to challenge the withdrawal of exemption before appropriate forum. 9. It is after this that on 1-3-2004 Respondent No. 1 has passed imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 taken against petitioners. 17. Lastly, Counsel for petitioners pointed out that on 28-3-2003 petitioners also wrote to Commissioner of Customs to take back both the machines. 18. Learned A.S.G.I. appearing for respondents heavily relies upon impugned order and findings recorded therein. He submits that the impugned order elaborately looks into mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relevant material. According to him, perusal of reply to show cause notices or then even present petition, does not show such compliances. He insists on treatment of 40% outdoor patients at establishment of petitioners or then of 10% indoor poor patients. He points out that in absence of such data, entire petition and challenge is without substance and petition deserves to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 show cause notices, have given 6 charts, which mention outdoor patients treated by the hospitals from 1990-91 till February, 2003, year-wise. Number of camps conducted and patients examined therein are also given. These patients at camps and patients treated at hospital are added together in last column under heading Total patients seen . In second chart, year-wise number of ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was any diagnostic treatment during those camps is a disputed question, which cannot be answered without recording proper finding on facts? Petitioners have supported their assertions by producing necessary documents maintained under Income-tax Rules. Those documents have been discarded without assigning any reason. 31. In any case, there was no report and there is no finding by Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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