(A.K. Sikri and Rohinton Fali Nariman, JJ.)
Commnr. of Customs (Imports), Mumbai ________ Appellant
v.
Gujarat Research & Medical Institute _____________ Respondent
Civil Appeal No. 6575 of 2003, decided on March 12, 2015
With
Civil Appeal Nos. 4947/2008, 546/2009 and 1049/2008,
The Order of the court was delivered by
Order
In C.A. No. 6575/2003
At the outset it was conceded by Mr. S. Radhakrishnan, learned senior counsel appearing for the appellant/Union of India, that the duty involved in the present case is only Rs. 4,77,131/-.
Keeping in view the smallness of the financial implication and the fact that the matter is otherwise decided against the Department by the CEGAT, we are not inclined to go into the merits of the appeal. The appeal is accordingly dismissed leaving the question of law open.
In C.A. No. 4947/2008
To put the controversy in short, the appeal of the respondent herein preferred against the demand of custom duty raised by the appellant was dismissed by the Tribunal as time barred. The respondent had given some justification for approaching the Tribunal belatedly but that was not accepted as constituting sufficient cause. As a result, the appeal of the respondent was dismissed as time barred. Against that order, the respondent approached the High Court. The High Court had, vide impugned judgment dated 6.12.2007, accepted the plea of the respondent and condoned the delay in filing the appeal before the Tribunal. As a result, the High Court has directed the Tribunal to decide the matter afresh in the light of the observations made in the impugned order. Against that order the Union of India has preferred this appeal.
After going through the judgment of the High Court, we find that the High Court has exercised its discretion on valid considerations and there is no reason to interfere with the said discretion exercised by the High Court in the present appeal. The appeal is accordingly dismissed. The matter is relegated to the Tribunal to decide the appeal of the respondent on merits. Since much time has elapsed in between, the Tribunal is directed to dispose of the appeal within a period of six months from today.
In C.A. No. 546/2009
The appellant herein, which is a hospital had imported certain medical equipments. It had claimed exemption from payment of custom duty under the Notification No. 64/1988 -Customs. As per the said Notification such an exemption is provided to those hospitals which are run by substantially aided charitable organization, with the condition that such charitable organization is so certified by the Ministry of Health and Family Welfare. The exemption is also available to other hospitals which are to be run for providing medical, surgical or diagnostic treatment not only without any distinction of caste, creed, race, religion or language but also,-
(a) free, on an average, to at least 40 per cent of all their outdoor patients; and
(b) free to all indoor patients belonging to families with an 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
(c) at reasonable charges, either on the basis of the income of the patients concerned or otherwise, to patients other than those specified in clauses (a) and (b).
The appellant had, in the first instance, claimed that it was satisfying the conditions stipulated as per the second alternative, mentioned above. However, it was not able to prove that those conditions are satisfied. Therefore, its claim was rejected by the custom authorities and the full amount of custom duty was demanded.
Challenging that action the appellant filed writ petition in the High Court of Bombay. In this writ petition, however, it based its claim on the premise that it was run by a charitable organization. The writ petition has been dismissed on the ground that the appellant has not been able to prove this claim either. Challenging that order the special leave petition was filed and leave in that matter was granted by this Court on 27.1.2009. It is how the instant appeal comes up for hearing.
Mr. Lakshmi Kumaran, learned counsel at the outset submitted that he would not be pressing for the benefit of Notification 64/1988 dated 1.3.1988. On the other hand, he brought to our notice another Notification 65/1988 of the same date i.e. 1.3.1988 whereunder the rate of duty for such import is fixed at 40% for the import of these medical equipments. He, thus, submitted that the appellant would be satisfied if the case of the appellant is considered under the aforesaid Notification 65/1988 and duty charged at the rate of 40%. He pointed out that such a course of action is permitted by this Court in C.A. No. 5000 of 2006 as well as in C.A. No. 6600 of 2008, both decided by a common order dated 17.9.2014.
After going through the said order dated 17.9.2014, we find the submission of Mr. Lakshmi Kumaran is factually correct. In the said case the direction was given in the following manner:
The learned counsel would further contend that the Tribunal in certain cases has directed the Commissioner to consider the applicability and admissibility of the said Notifications to the assessees and if the notifications are applied the appellant-assessee would only be liable to pay the duty as per the rate fixed by the Central Government at the relevant time. Without entering into the justifiability of the submission, we only direct the Commissioner to consider the rate of duty leviable on the assessee in the backdrop of aforesaid Notifications referred to hereinabove.
It may also be noted that a condition was imposed for deposit of 40% as a condition to afford opportunity of hearing.
Going by the spirit of the aforesaid order, we dispose of this appeal with similar direction to the Commissioner to consider the applicability of the Notification 65/198 dated 1.3.1988. The appellant shall make an application in this behalf within a period of two months from today along with deposit of 40% of the duty. On making of this application with the deposit as aforesaid, the same shall be considered by the Commissioner within a period of six months. Thereafter if the appellant asked for oral hearing, the same shall be accorded to the appellant by the Commissioner before passing the final order.
IN C.A. No. 1049/2008
List on 16.3.2015 as part-heard.
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