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TMI Blog2008 (5) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... g advantage of the aforesaid Notification, the appellant got sanction to import four machines (though only three were imported) and also furnished the necessary documents to the authorities. Respondent No.2, the Director, Medical Education submitted a report to respondent No.3, Secretary to the Government, Health, Medical & Family Welfare Department, Govt. of A.P., intimating that he had conducted an inspection of the appellant's hospital with respect to the use of the imported equipment and the free services that were to be provided to the poor in accordance with the terms of the exemption Notification. Taking note of the report aforesaid, respondent No.3 forwarded the recommendation to respondent No.1 for the issuance of an installation certificate. It appears that respondent No.1 thereafter asked for some additional information which too was collected and conveyed to the said officer vide letter dated 29th March 1996. The appellant, however, received two letters dated 18th June 1997 and 14th July 1997 requiring it to furnish yet more information with respect to the use of the "Hand Held Recording Doppler" for which an authorization for import had been issued. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been found to be less than 40% for one year and (4) that information furnished by the institute did not clarify the OPD/IPD free facilities, that were required to be given to those whose income was less than Rs.500/- per month and the information required had not been furnished in the prescribed format. He has pleaded that as per the information given to the respondents, the Hand Held Recording Doppler had not been imported and as far as point Nos. 2 and 3 are concerned, there was only a marginal deviation with respect to the facilities provided to the poorer sections of the population and the required information had, in fact, been supplied to the respondents as per their direction. He has in this connection referred us to extracts of the OPD register which has been appended with the reply. It has accordingly been pleaded that in the light of the judgments of this Court in Commissioner of Customs (Import), Mumbai vs. Jagdish Cancer & Research Centre-1 (2001) 6 SCC 483, a marginal deviation would not involve penal consequence. It has also been submitted that as per the provisions of section 124 of the Customs Act, 1962, it was incumbent to have given the appellant a show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement as per proforma that had been laid down in the Notification dated 10th August 1993. We have no doubt that having imported medical equipment on concessional terms, it was incumbent on the appellant to have scrupulously observed the conditions of the import and to follow the guidelines designed to ensure that the equipment was being properly utilized. In Mediwell Hospital & Health Care's case (supra) this is was what the Court had to say : "The competent authority, therefore, should continue to be vigilant and check whether the undertakings given by the applicants are being duly complied with after getting the benefit of the exemption notification and importing the equipment without payment of customs duty and if on such enquiry the authorities are satisfied that the continuing obligations are not being carried out then it would be fully open to the authority to ask the persons who have availed of the benefit of exemption to pay the duty payable in respect of the equipments which have been imported without payment of customs duty. Needless to mention the Government has granted exemption from payment of customs duty with the sole object that 40% of all outdoor patients a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o outdoor patients is 39.8 percent and instead of 10 cent indoor patients it is 8.9. per cent. In connection with this submission, it may be observed that this aspect of the matter has been considered by the Commissioner as well as CEGAT in some details and ultimately it has been found that there was a shortfall which is also not disputed by the respondent. A perusal of the condition in the notification indicates that on an average, at least 40 per cent of all outdoor patients should be provided free treatment. It is, thus, at least 40 per cent or maybe above. It is submitted that the condition nowhere indicates that within what period the prescribed percentage is to be achieved. It is submitted that it should be during the life of the equipment imported. Thus, shortfall of a particular year may be made good in the following year. We are not impressed by this argument. It would, not at all, be necessary to prescribe any period to achieve the given percentage of patients treated free. It should generally be all through the period. It being at least 40 per cent, there is hardly any occasion to say that in case there is more than 40 per cent in a given period, that may make good the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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