TMI Blog1996 (12) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ion notification as a whole it appears that the Government intended to exempt such hospitals from payment of customs duty on import of equipments which are certified by the Ministry of Health and Family Welfare to the effect that it provides medical, surgical or diagnostic treatment. Thus a Diagnostic Centre run by a private individual purely on commercial basis may not be entitled to the exemption under the notification issued by the Central Government. The conclusion of the Central Government as well as that of the High Court on this score, therefore, may not be held to be incorrect and the appellant may not be entitled to seek for issuance of mandamus to Respondent No. 2 on this ground. On facts alleged it cannot be disputed that the appellant intended to import latest equipment for Cardio Vascular Imaging System. When Respondent No. 2 has already granted certificates in favour of several such Diagnostic Centres, as alleged in the Special Leave Application, refusal on his part to grant such certificate to the appellant without any justifiable reason tantamounts to a discriminatory treatment metted out to the appellant which on the face of it is violative of Article 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments like Stress Test System, Colour Doppler Holter Monitor Recorder, Tread Mill Test Machine, applied to the Director General for issuance of a certificate so that the machinery imported would not be liable for levy of customs duty. The Respondent No. 2, by his letter dated 2-2-1993 after scrutinising the project report submitted by the appellant and on being satisfied that the import of the equipments are essential for use in any hospital granted certificate for importing Marquette Max though the appellant was intending to import Marquette Case 15. On receipt of the certificate dated 2-2-1993 the appellant applied for amendment of the exemption certificate. But no action was taken by the Respondent No. 2. Ultimately the imported equipment arrived in India on 22nd March, 1993 and the appellant released the same on furnishing Bank Guarantee. Thereafter the appellant approached the Respondent No. 2 for grant of exemption certificate but as no order was passed by Respondent No. 2 the appellant approached the High Court by filing a Writ Petition which was registered as W.P. No. 10717 of 1993. The said Writ Petition was disposed of by order dated 16-2-1994 directing the Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexus and as such must be held to be arbitrary and violative of Article 14 of the Constitution and, therefore, a Writ of Mandamus must be issued to Respondent No. 2 for grant of certificate of exemption. 6.Mr. Mahajan, learned senior Counsel appearing for the Union of India, on the other hand contended, that the High Court rightly came to the conclusion that a Diagnostic Centre will not come under the purview of the exemption notification and there is no error in such conclusion of the High Court which requires to be interfered with by this Court in exercise of power under Article 136 of the Constitution. The learned senior Counsel further contended that the exemption notification having indicated certain obligations on the part of the person who import equipments without paying any customs duty and those obligations not being carried out, the Respondent No. 2 was wholly justified in refusing to grant the exemption certificate and the High Court did not commit any error in dismissing the Writ Petition. So far as the allegations of the appellant regarding discrimination are concerned, neither there has been any reply to the same by the respondents nor any authority of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o time, by the said Ministry of Health and Family Welfare. All such hospitals which may be certified by the said2. Ministry of Health and Family Welfare, in each case, to be run for providing medical, surgical or diagnostic treatment not only without any distinction of caste, creed, race, religion or language but also, - Free, on an average, to at least 40% of all their outdoor(a) patients; and Free to all indoor patients belonging to families with an(b) income of less than rupees five hundred per month, and keeping for this purpose at least 10 per cent of all the hospital beds reserved for such patients; and at reasonable charges, either on the basis of the income of(c) the patients concerned or otherwise, to patients other than those specified in Clauses (a) and (b)." Clauses 3 and 4 of this notification also indicate the pre-conditions to be satisfied before the certificate in question is issued. Clauses 3 and 4 are extracted hereinbelow in extenso : "3. Any such hospital in respect of which the said Ministry of Health and Family Welfare, may, having regard to the type of medical, surgical or diagnostic teatment available there, or the geographical situation thereof, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that such hospital has started functioning;(ii) the importer shall furnish, at the appropriate time, the(c) certificates referred to in (b); the importer executes a bond in such form and for such sum(d) as may be specified by the Assistant Collector of Customs binding himself to pay, on demand an amount equal to the duty leviable on the said hospital equipment :- if such hospital starts functioning within the period(i) specified therefore, as is not proved to the satisfaction of the Assistant Collector of Customs to have been installed in such hospital, or if such hospital does not start functioning within the(ii) period specified therefore. EXPLANATION for the purposes of this notification, the expression Hospital includes any Institution, Centre, Trust, Society Association, Laboratory, Clinic and Maternity Home which renders medical, surgical or diagnostic treatment." 9.It is true that no importer can claim absolute exemption from payment of customs duty as a right. The normal rule is that every import attracts duty under the Customs Tariff Act unless otherwise exempted by a notification issued by the Central Government in exercise of power under Section 25 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act we see no reason to deny the said exemption certificate to the appellant. On facts alleged it cannot be disputed that the appellant intended to import latest equipment for Cardio Vascular Imaging System. When Respondent No. 2 has already granted certificates in favour of several such Diagnostic Centres, as alleged in the Special Leave Application, refusal on his part to grant such certificate to the appellant without any justifiable reason tantamounts to a discriminatory treatment metted out to the appellant which on the face of it is violative of Article 14 of the Constitution of India. In view of our conclusion, as aforesaid. We have no doubt in our mind that the order of Respondent No. 2 refusing to grant certificate to the appellant is liable to be struck down and the High Court also committed serious error in rejecting the Writ Petition filed by the appellant. 11.Coming to the third question we have carefully considered the materials on record as well as the notification of the Central Government dated 1-3-1988 containing several obligations on the part of the person who are availing benefit of the exemption notification. On going through the same we are satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms duty under the notification should notify in the local newspaper every month the total number of patients they have treated and the 40% of them are the indigent persons below stipulated income of Rs. 500/- per month with full particulars and address thereof which would ensure that the application to treat 40% of the patients free of cost would continuously be fulfilled. In the event of default, there should be coercive official action to perform their obligation undertaken by all such persons. This condition becomes a part of the exemption order application and strictly be enforced by all concerned including the Police personnels when complaints of non-compliance were made by the indigent persons, on denial of such treatment in the concerned hospital or diagnostic centres, as the case may be. 14.Subject to the aforesaid observations, the impugned order of Respondent No. 2 as well as that of the High Court are set aside and Respondent No. 2 is directed to re-consider the matter and issue necessary certificate to the appellant within a period of three months from the date of receipt of the order. Since the appellant has already imported the equipment on furnishing bank guaran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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