1 wp2203.09.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2203 OF 2009 Dr. Balabhai Nanavati Hospital and Nanavati Hospital Research Centre. .....Petitioner. Vs. Union of India & Ors. .....Respondents. Mr. E.P. Bharucha Sr. Advocate with Mr. Cyrus Bharucha, Mr. Sachin Chandarana and Ms. Pranika Bhatia and Mr. Shreranth Paruchuri i/by M/s. Manilal Kher Ambalal & Co. for the Petitioner. Mr. R.V. Desai, Sr. Advocate with Mr. M.S. Bhardwaj and Mr. Advait Sethna for Respondent Nos. 1 to 5. CORAM :- DR. D.Y. CHANDRACHUD AND ANOOP V. MOHTA, JJ. DATE :- 19 JULY 2011. ORAL JUDGMENT:- (PER DR. D.Y. CHANDRACHUD, J.) The challenge in these proceedings under Article 226 of the Constitution is to an order of the Deputy Director General in the Directorate General of Health Services (DGHS) of the Union Ministry of Health and Family Welfare dated 15 October, 2009. By the impugned order, it has been held that: (i) The Petitioner failed to 2 wp2203.09.sxw ssm fulfill the “continuous obligation of free treatment” as stipulated in an Exemption Notification (Notification 64/88-CUS) and undertaken when the goods were imported; (ii) The Customs Duty Exemption Certificates (CDECs) issued to the Petitioner are cancelled; and (iii) The Application filed by the Petitioner for re-categorization under category 1 of the exemption notification stands rejected. 2 The Petitioner has been registered as a Public Charitable Trust under the Bombay Public Trusts Act, 1950 since 16 June 1953. The Petitioner runs a multi-specialty hospital in Mumbai. The Petitioner desired to import diagnostic equipment for use in the hospital and sought to avail of an exemption from the payment of customs duty under a notification dated 1 March 1988 issued under Section 25 of the Customs Act, 1962. At the material time, CDECs were granted to the Petitioner under which it availed of the benefit of a duty free import of medical diagnostic equipment. 3 Under a Customs Exemption Notification dated 1 March 1988, the Central Government exempted all equipment, apparatus and appliances, including spare parts and accessories but excluding consumables the import of which was approved either generally or in 3 wp2203.09.sxw ssm each case by the Union Ministry of Health and Family Welfare or by the DGHS as essential for use in any hospital, from customs duty. In order to be eligible, a hospital had to fall within one of the four categories in the table annexed to the notification. In the present case, the dispute relates to the categorization of the Petitioner. The two categories in question upon which the dispute turns are categories 1 and 2 of the table which are as follows:- “1. All such hospitals may be certified by the said Ministry of Health and Family Welfare, to be run or substantially aided by such charitable organization as may be approved, from time to time, by the said Ministry of Health and Family Welfare. 2. All such hospitals which may be certified by the said 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 casts, 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).” 4 wp2203.09.sxw ssm 4 It is not in dispute that on every occasion of import the Petitioner had applied to the competent authority for the issuance of a customs duty exemption certificate. A sample of one such application dated 5 May 1993 has been annexed to the affidavit-in-reply. On 14 September 1993, the Directorate of Health Services in the Government of Maharashtra, issued a certificate stating that the institution fell within category 2. Accordingly, a certification was issued to the effect that the hospital fulfilled the requirements for category 2. An affidavit was filed by the Medical Administrator of the hospital on 8 September 1993, agreeing to comply with the requirements mandated for a category 2 institution and undertaking to accept the liability for the payment of customs duty on a failure of compliance of the conditions specified in the exemption notification. 5 On 6 January 2000, a notice to show cause was issued to the Petitioner calling upon it to explain as to why customs duty of `15,22,130/- should not be charged and why the equipment/spares should not be confiscated under Section 111 (o) of the Customs Act, 1962 and why a penalty should not be imposed under Section 112. 5 wp2203.09.sxw ssm Upon adjudication, an order was passed by the adjudicating authority confirming the demand for duty, imposing a redemption fine of `4 lacs and a penalty of `40,000/-. Against the order of adjudication dated 13 September 2000, the Petitioner filed an Appeal before the Central Excise and Services Tax Appellate Tribunal (CESTAT). 6 On 2 February 2001, the CDECs, which were granted to the Petitioner were cancelled by the Deputy Director General in the DGHS. The Petitioner challenged the cancellation of its CDECs in writ proceedings filed before this Court in 20011. A Division Bench of this Court by a judgment dated 26 November 2008, set aside the cancellation on the ground that there was a breach of the principles of natural justice, but left it open to the authority to issue a notice to show cause and to pass an appropriate order in accordance with law. 7 The Customs Appeal that was filed by the Petitioner before the CESTAT challenging the demand for duty and imposition of the redemption, fine and penalty was dismissed on 11 June 2008. The order of the CESTAT was confirmed by a Division Bench of this Court on 1 October 2008 (Customs Appeal Nos. 52, 53 and 55 of 2008)2. 1 WP 651 of 2001 2 2008 (232) ELT 406 (Bom) 6 wp2203.09.sxw ssm The Petitioner challenged the order of the Division Bench of this Court in a Special Leave Petition before the Supreme Court. The Supreme Court granted leave to appeal and delivered its judgment dated 8 April 2009 by which the judgment of the Division Bench was set aside and the Customs Appeals were remitted back to this Court for fresh consideration in accordance with law. 8 The Deputy Director General in the DGHS by his order dated 15 October 2009 passed orders on remand by which he came to the conclusion that: (i) The Petitioner had been granted the benefit of an exemption from duty under the notification dated 1 March 1988 as a category 2 institution; (ii) The categorization was granted on the strength of a certificate issued by the Directorate of Health Services of the State of Maharashtra stating that the Petitioner fell within category 2 and the Petitioner had furnished an affidavit undertaking to accept the liability for the payment of customs duty on failure of compliance with the conditions laid down in the exemption notification; (iii) After the exemption benefits were withdrawn for non-fulfillment of the free treatment obligation, the Petitioner had represented its case to re-categorize the hospital under category 1 of the notification. The request for re-categorization belatedly made 7 wp2203.09.sxw ssm after eight years could not be entertained; (iv) The Petitioner had never been approved as a charitable hospital by the DGHS or by the Union Ministry of Health and Family Welfare nor had applied for the grant of CDECs under category 1; and (v) Consequently, the cancellation of the CDECs for failure of compliance with the obligations attached to category 2 was valid. The request for re- categorization could not be granted. 9 Counsel appearing on behalf of the Petitioner submitted that; (i) In view of the judgment of the Supreme Court in Share Medical Care Vs. Union of India, 3 the fact that the Petitioner had been categorized in category 2 did not preclude it from seeking categorization in a more beneficial category namely category 1 of the exemption notification dated 1 March 1988; (ii) The Respondents had at no stage in these proceedings disputed the fact that the Petitioner fulfilled the requirements of category 1. The Petitioner had been registered as a Public Charitable Trust under the provisions of the Bombay Public Trusts Act, 1950 since 1953; (iii) The basis on which the Application for re-categorization had been rejected by the Deputy Director General is erroneous. The basis of the impugned order is that since 3 2007(4) SCC 573 8 wp2203.09.sxw ssm registration was sought for and was granted under category 2 and the Petitioner had undertaken to comply with its obligations attached to that category, that would preclude it from seeking categorization in category 1; (iv) In the present case, the Petitioner had not accepted the cancellation of its CDECs and had instituted writ proceedings before this Court in 2001 to challenge the cancellation. The Petition was allowed by the Division Bench of this Court in 2008. Hence, the Supreme Court in its judgment dated 8 April 2009 in the Petitioner’s own case observed that on the date of the application for change in categorization, the issue of categorization was a live issue. The Supreme Court also came to the conclusion that the judgment in Jaslok Hospital and Research Centre Vs. Union of India 4 would not apply to their case for the reason that in that case, the hospital had accepted the withdrawal of the CDECs and it was only after three years of the cancellation of the CDECs that the hospital applied for re- categorization. In the present case, Supreme Court observed that the cancellation of the CDECs was challenged and was quashed by the High Court on 26 November 2008 and consequently on the date of the application for a change in category, the issue of categorization was found to be a live issue. On these grounds, it has been urged by 4 2007 (218) ELT 170 (SC) 9 wp2203.09.sxw ssm Senior Counsel that an order of remand would be warranted with a direction to the authority to specifically consider as to whether the Petitioner fulfills the requirements of the first category to the exemption notification. 10 On the other hand, it has been urged on behalf of the Respondents that; (i) The Petitioner came to be categorized as a category 1 institution following a certificate which was issued by the Director of Health Services of the State Government on 14 September 1993; (ii) Until 2001 when the CDECs were cancelled, the Petitioner did not make any complaint about categorization; (iii) The issue of categorization did not arise either before the Division Bench of this Court or before the Supreme Court in the Customs Appeal; (iv) The Union Ministry of Health and Family Welfare was not a party to the proceedings before the Supreme Court which culminated in the judgment dated 8 April 2009 and would therefore, not be bound by the observations contained in the judgment; and (v) Re-categorization in category 1 was sought by the Petitioner on 4 August 2009. An Application belatedly made could not have been entertained and was correctly rejected. 10 wp2203.09.sxw ssm 11 The rival submissions now fall for determination. 12 On 1 March 1988, the Government of India issued a notification under Section 25 of the Customs Act, 1962 exempting the import of equipment required for use in hospitals specified in the table to the notification from the payment of customs duty subject to the fulfillment of the conditions of the notification. From the material before the Court, it appears that the Petitioner availed of the exemption from customs duty from 1989. On 6 August 1993 a communication was addressed by the Assistant Director General in the DGHS to the Public Health Department of the State Government, recording therein that the Union Ministry of Health and Family Welfare had modified the existing procedure and guidelines pertaining to the grant of duty exemption certificates. The annexure to the letter called upon the State Health Authority to furnish additional information inter-alia indicating the category in which the Applicant fell for classification. In respect of category 2 hospitals, the State Health Authority was required to certify the fulfillment of the conditions stipulated in the exemption notification. The letter dated 6 August 1993, a copy of which was addressed to the Medical Superintendent of the Petitioner, required the Petitioner to furnish an 11 wp2203.09.sxw ssm affidavit accepting liability to pay customs duty on failure of the compliance with the conditions specified in notification 64 of 1988. On 14 September 1993, a certificate was issued by the Directorate of Health Services of the State Government stating that the Petitioner fell within category 2 and certifying that the requirements of the notification were being fulfilled by the hospital. The Administrator of the hospital also filed his affidavit dated 8 September 1993 as stipulated in the Union Government’s communication dated 6 August 1993. 13 From the record before the Court, it emerges that two proceedings came to be instituted against the Petitioner: (i) The first was an adjudication proceeding initiated under the Customs Act, 1962 for the recovery of duty on the basis that the Petitioner had failed to comply with the conditions imposed by the exemption notification as a category 2 institution. In that proceeding, the order of adjudication resulted in a demand for duty, and the imposition of a penalty and a redemption fine. The order of the CESTAT was confirmed by a Division Bench of this Court which dismissed the Customs Appeal. The matter was carried in Appeal by the Petitioner to the Supreme Court. The Supreme Court delivered its final judgment on 8 April 12 wp2203.09.sxw ssm 2009; and (ii) The second proceeding related to the cancellation of the CDECs issued to the Petitioner by an order dated 2 February 2001. The Petitioner had challenged the order of cancellation in a writ proceeding before this Court which was instituted in 2001 and which was finally disposed of by a judgment of a Division Bench dated 26 November 2008. The order of cancellation was set aside on the ground that there was a breach of the principles of natural justice, leaving it open to the authority to issue a fresh notice to show cause and pass an order in accordance with law. In pursuance of the judgment of the Division Bench dated 26 November 2008, the Deputy Director General re-considered the matter and sustained the order of cancellation of the CDECs by the impugned order dated 15 October 2009. 14 The judgment of the Supreme Court which was delivered on the Appeal preferred by the Petitioner against the dismissal of the Customs Appeal by this Court, has a significant bearing on the present case. As the Supreme Court observed the issue there was as follows: “ The issue which arose before the High Court was whether the appellant- hospital fell within Category 1 of the table annexed to the Notification quoted hereinabove. This issue arose because the Director General of Health 13 wp2203.09.sxw ssm Services (DGHS) while granting Customs Duty Exemption Certificate (CDEC) wrongly categorized the appellant – hospital in Category 2 instead of Category 1. It is this controversy which ultimately came before the High Court in Customs Appeal Nos. 52, 53 and 55 of 2008.” 15 The Division Bench of this Court had, by its decision which was carried in Appeal to the Supreme Court, come to the conclusion that the case was covered by the decision of the Supreme Court in Jaslok Hospital. In Jaslok Hospital CDECs had been issued to the hospital under the same exemption notification dated 1 March 1988 in pursuance of which medical equipment was imported between 1988 and 1994. The CDECs certified that the hospital in that case was covered by category 2 of the table. The CDECs were cancelled on 14 November 2000 for breach of the conditions attached to category 2. After a lapse of three years, the hospital made a representation to the Union Ministry of Health and Family Welfare in 2003 which was rejected by the DGHS. The order of the DGHS was challenged before this Court together with the cancellation of the CDECs. Before this Court a statement was made on behalf of the hospital that it did not press the challenge to the communication by which the CDECs were cancelled and the challenge was only confined to the subsequent order passed by the DGHS declining re-categorization under category 1. 14 wp2203.09.sxw ssm This Court upheld the order passed by the DGHS which was challenged before the Supreme Court. The Supreme Court while confirming the judgment of the Division Bench held as follows:- “16. Without going into the question regarding applicability or otherwise of the decision referred to above, we are of the view that the appellant is not entitled to the reliefs sought for. The appellant had given up its challenge to the communication dated 14-11-2000 cancelling/withdrawing CDECs issued to the appellant for having violated the conditions laid down for grant of exemption. The effect of the communication dated 14-11-2000 is that the appellant is not entitled to the exemption under any of the clauses of the aforesaid notification on or after 14-11-2000. The representation made by the appellant after a lapse of three years of the cancellation/ withdrawal of CDECs cannot be entertained, as the change of its category would not arise as the appellant’s categorisation under Para 2 of the table annexed to the notification had already been withdrawn. Such a change could only be possible if the appellant had applied for change of its categorisation before the issuance of the communication of DGHS dated 14-11-2000 withdrawing/cancelling CDECs.” Apart from this, the Supreme Court held that a change of categorization was sought after a lapse of three years from the cancellation of the CDECs and could not be entertained belatedly. 16 When the Appeal filed by the Petitioner against the judgment of 15 wp2203.09.sxw ssm the Division Bench of this Court dismissing the Customs Appeal, came up before the Supreme Court, the judgment in Jaslok Hospital was distinguished on the ground that: (i) In the Jaslok Hospital case there was no challenge to the cancellation of the CDECs whereas, in the present case, the cancellation of the CDECs was as a matter of fact impugned in writ proceedings before this Court (WP 651/2001) and on 26 November 2008, the order of cancellation had been set aside by the Division Bench of this Court; and (ii) In the Jaslok Hospital case, there was an Application for re-categorization made after three years of the cancellation of the CDECs. At this stage, it would be necessary to advert to the observations contained in the judgment of the Supreme Court dated 8 April 2009- “The narrow issue which, therefore, arises for determination in this case, is whether the case of the appellant herein stands covered by the judgment in the case of Jaslok Hospital (supra). In that case Jaslok Hospital was categorized under Category 2. That categorization was cancelled. There was no challenge to the cancellation of the categorization and without such a challenge an application was made for change in category. Under those circumstances, this Court observed that in order to enable a hospital to claim change in the categorization, the hospital must be in some category on the date on which application is made for change in categorization. It is important to note that in the case of Jaslok Hospital (Supra), the said hospital applied for re-categorization after three years of the cancellation/ withdrawal of CDEC. 16 wp2203.09.sxw ssm On the other hand, in the present case, we find that the appellant had applied for categorization as category 1 hospital. On account of the alleged mistake on the part of DGHS, while granting CDEC categorized the appellant herein as category 2 instead of category 1. Further, DGHS cancelled CDEC ex-parte without giving any notice or hearing to the appellant herein stating that the conditions of Category 2 stood violated. This cancellation of CDEC has been quashed by the High Court vide its order dated 26.11.2008. It appears that the impugned order was passed on 1.10.2008, however, vide Order dated 26.11.2008 in Writ Petition No. 651 of 2001, the order of cancellation of CDEC, which was an ex-parte order, has been set aside. In the circumstances, we hold that this case is not covered by the judgment in the case of Jaslok Hospital (supra). Therefore, on the date of the application for change in categorization the issue of categorization was a live issue.” 17 The judgment of the Supreme Court clearly concludes the position that the case of the Petitioner is distinguishable from the case of Jaslok Hospital. The Petitioner had not accepted the cancellation of the CDECs and as a matter of fact, had questioned the validity of the cancellation by pursuing its remedy before this Court. The writ proceedings were pending before this Court between 2001 and 26 November 2008 when the Division Bench, while allowing the petition, set aside the cancellation of the CDECs on the ground that there was a breach of the principles of natural justice. The Petitioner sought re- categorization as an institution in category 1 on 14 August 2009 when 17 wp2203.09.sxw ssm the issue of categorization was a live issue as noted by the Supreme Court. 18 The question as to whether an importer who has been categorized in category 2 of the exemption notification of 1 March 1988 can apply for re-categorization in another category of the same notification is not res-integra. In Share Medical Care Vs. Union of India, 5 the Supreme Court had to deal with a similar situation. In that case in 1992-1993, medical equipment was imported for use in a hospital which had been categorized in category 2 of the exemption notification dated 1 March 1988. The Appellant sought a re- categorization in category 3 but its representation was dismissed by the Deputy Director General. The Andhra Pradesh High Court while dismissing the petition under Article 226 observed that the hospital had claimed an exemption on the basis of category 2 of the table to the exemption notification. It was only when the hospital did not fulfill the conditions relateable to category 2 that it sought a conversion of categorization under category 3 which, according to the High Court, was not tenable. 5 2007 (4) SCC 573 18 wp2203.09.sxw ssm 19 The Supreme Court allowed the Appeal filed by the Hospital and came to the conclusion that the fact that the hospital had sought an exemption under category 2 and not under category 3 initially, would not preclude it from submitting an application for re-categorization. Even if the applicant was entitled to benefit under two different notifications or even under two different heads, it could claim a more favourable benefit and it was the duty of the authority to grant a benefit to which the applicant was otherwise entitled. In that context, the Supreme Court held as follows:- “16. In the instant case, the ground which weighed with the Deputy Director General (Medical), DGHS for non-considering the prayer of the appellant was that earlier, exemption was sought under category 2 of exemption notification, not under category 3 of exemption notification and exemption under category 2 was withdrawn. This is hardly a ground sustainable in law. On the contrary, well-settled law is that in case the applicant is entitled to benefit under two different notifications or under two different heads, he can claim more benefit and it is the duty of the authorities to grant such benefits if the applicant is otherwise entitled to such benefit. Therefore, non-consideration on the part of the