IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 22-08-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.3898 of 2001 Kovai Medical Centre and Hospital Limited, Avinashi Road, Coimbatore 641 014 repd. By its Chaiman and Managing director Dr.Nalla G.Palaniswamy .. Petitioner. Versus 1.Directorate General of health Services (M.G.Section) Nirman Bhavan, New Delhi repd., by its Director. 2.Deputy Director General (Medical) Directorate General of Health Services (MG) Section, Nirman Bhavan, New Delhi 3.Commissioner of Customs Air Cargo Complex, Meenambakkam, Chennai 600 027. 4.State of Tamil Nadu represented by Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai-600 009. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorari, calling for the records comprised in the proceedings of the first respondent, dated 2.2.2001 in No.Z.37034/9/93-MG and quash the said proceedings as being illegal and arbitrary. For Petitioner : Mr.Satish Parasaran For Respondents : Mr.M.Devendran (SCCG) (R1 to R3) Mr.T.Seenivasan Additional Government Pleader (R4) https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard the learned counsel appearing for the petitioner, the learned Senior Central Government Counsel appearing for the respondents 1 to 3 and the learned Additional Government Pleader appearing for the fourth respondent. 2. This writ petition has been filed challenging the communication, dated 2.2.2001, in No.Z.37034/9/93-MG, concluding that the petitioner hospital had failed to fulfil the post import conditions and hence, it is not eligible to retain the Custom Duty Exemption Certificates issued under Notification No.64/88-Cus, dated 1.3.88, and thereby, withdrawing the services as cancelled. 3. It has been stated that the petitioner hospital had imported valuable life saving medical equipments and it had sought the benefit and entitlement to complete exemption from payment of customs duty in respect of the imported equipments, as prescribed under the Customs Notification No.64/88-Cus, dated 1.3.88. In spite of the petitioner hospital, complying with all the terms and conditions prescribed under the said notification, the petitioner hospital has been served with a notice, by the third respondent, on 24.7.2000, under Section 124 of the Customs Act, 1962, on the ground that the petitioner had failed to fulfill the conditions laid down in the Customs Notification No.64/88-Cus, dated 1.3.88. The validity of the said notification has been challenged before this Court in W.P.No.13874 of 2000. The impugned communication issued by the first respondent, dated 2.2.2001, is arbitrary, illegal and unsustainable in the eye of law. The first respondent had erroneously come to a conclusion that the petitioner hospital is not in a position to provide documentary evidence to prove that it is extending free treatment to even 40 % of its out door patients. Even though the petitioner hospital had sent all the necessary records as requested in the communication of the first and second respondents, dated 28.4.2000, the first respondent has come to a wrong conclusion, without considering the said records. While so, an Inspection Committee appointed by the Government of Tamilnadu, had conducted inspection of the petitioner hospital, on 28.6.2000, and all the required particulars had been furnished to the Committee to show that all the conditions stipulated in the Customs Notification No.64/88-Cus, dated 1.3.88, had been complied with. In spite of various other communications between the petitioner hospital and the concerned officials and the respondents and the clarifying of the queries raised by the respondents and providing of all the required information, the first respondent had issued the impugned communication, dated 2.2.2001, mechanically and without due application of mind and in violation of the principles of natural justice. In such circumstances, the petitioner had filed the present writ petition before this Court, under Article 226 of the Constitution of India, challenging the proceedings of the first respondent in Proceedings No.Z.37034/9/93-MG, dated 2.2.2001. https://hcservices.ecourts.gov.in/hcservices/ 4. In the counter affidavit filed on behalf of the respondents 1 and 2 and the fourth respondent, the claims made on behalf of the petitioner hospital have been denied. It has been stated that the petitioner hospital has been a beneficiary under the Customs Notification No.64/88-Cus, dated 1.3.88. To assess its continuing eligibility to retain the Customs Duty Exemption Certificate, a time bound letter, dated 28.4.2000, was issued to the institution seeking information on the free treatment provided by the institution, as stipulated under the notification. By a letter, dated 8.5.2000, the petitioner institution had sent its reply. In the said reply a copy of the proforma information sent to the Government of Tamilnadu had been enclosed, showing that the 40% free treatment condition had been complied with. An inspection report of the Commissioner of Customs, Coimbatore, was received through the Rosha committe constituted by the High Court at Delhi. The report of the inspection conducted by the Superintendent of Customs, Air Intelligence Unit, suggested that the free treatment is limited to the staff, administrators and the persons close to the management of the hospital. The report had mentioned that they are neither giving 40% OPD treatment, nor extending free treatment to indoor patients whose income is less than Rs.500/- per month. The petitioner hospital had also failed to serve 10% of the beds for such patients. The free treatment is limited to "consultation, registration and testing". The report had also mentioned that the free dental and eye camps have been conducted only occasionally, since the inception of the hospital. Since there were contradictions in the opinions received, a clarification was sought for from the petitioner institution. No information was received from the petitioner institution, clarifying the discrepancies. While so, the Union Health Secretary had written to all the Chief Secretaries of the States to send information on fulfilment of post import conditions by the beneficiary institutions. Based on the directions issued by the Delhi High Court, the Health Secretary wrote to all the Chief Secretaries, vide letter, dated 30.5.97. In response to the letter, dated 30.5.97, written by the Union Health Secretary to the Chief Secretary of the State of Tamilnadu, the Government had deputed a team to inspect the institution. In the inspection report of the Committee, it was concluded as follows: "1.Out of the 42 equipment for which CDEC stands issued, the hospital has not availed the custom duty benefit for 16 equipments and those have not been returned to Dte.GHS. 2. The 25 beds stated to the reserved for poor patients were all occupied by paying patients. 3. On the day of the visit no patient was found availing free treatment. 4. Proper records are not maintained for OPD/indoor free treatment and no records were provided to the satisfaction of inspecting authorities to establish free treatment and hence difficult to accept institution's submission of free treatment. 5. The institution does not seem to offer any concession to patients." https://hcservices.ecourts.gov.in/hcservices/ Based on the findings of the inspection committee, the impugned communication, dated 2.2.2001, had been issued by the first respondent withdrawing the Customs Duty Exemption Certificates issued in favour of the petitioner hospital. 5. At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the petitioner had placed before this Court an order, dated 8.6.2001, made in W.P.Nos.2110 of 1998 and 3652 and 3654 of 1999 (Apollo Hospitals Enterprises Ltd., Vs. Union of India (UOI). Paragraphs 49 to 53 reads as follows: "49. In my view, the above contention of the learned Additional Solicitor General cannot be countenanced. In the Mediwell Hospital case the question arose for consideration is whether the diagnostic centers are entitled for the benefit of the exemption of Customs Duty under Notification No.64/88. The learned Judges held that the petitioner therein, being a diagnostic centre, is entitled for such benefit on the ground that similar diagnostic centres were granted benefits. This ruling had been overruled in the later judgment of three Judges Bench in the case of Faridabad CT. Scan Centre. So far as the discharge of obligation is concerned, it has been held that it is a continuous obligation. But, however, the question of rescinding the Notification No.64/88 and the consequences thereon was not considered by the Apex Court, as that issue was not raised. 50. Neither before the Apex Court nor before any other Court, the question of rescinding of the notification had been raised and discussed. When the rescinding of the notification makes the said notification non existent, it is a vital question to decide the rights and liabilities of the parties. Hence, this Court had discussed this question, as supra and found that the liabilities arising out of the rescinded Notification 64/88 can be enforced only for the period during which the said notification was in existence. Hence, it is for the authorities to establish that the petitioners had violated the obligation only during that period. If that is established, only then it is open to the authorities to proceed further. 51. Before parting with the case, it is worthwhile to mention that after the rescinding of the Notification 64/88 under the Notification 99/94, the authorities had extended the benefit of the exemption from Customs Duty in respect of the life saving medical equipments under Notification 122/94, dated 3.6.1994 and Notification 55/95, dated 16.3.1995. Hence, wherever the applications for exemption of Duty were pending on the date of the rescinding of the Notification 64/88, the authorities are directed to dispose of the same in terms of the subsequent Notification 122/94 and 55/95 as amended from time to time, on the basis of the principles laid down by the Supreme Court in the judgment in the case of Gajraj Singh https://hcservices.ecourts.gov.in/hcservices/ V. State Transport Appellate Tribunal, as well as Gurucharan Singh V. Yashwant Singh where the Apex Court has held that whenever the old Act is repealed and the new Act had been introduced and if under the new Act the procedure had been specified for the disposal of such application, the authorities are bound to consider and dispose of the pending applications filed under the old Act in accordance with the new Act. 52. Following the same principle, the authorities have to dispose of the pending applications, claiming the exemption of Duty under the Notification 64/88 in accordance with the Notification 122/94 and 55/95, as amended from time to time, since Notification 64/88 had been rescinded in March, 1994, it is not under dispute that the subsequent notification have extended the benefit of exemption of Duty for the life saving medical equipments. Hence, the pending applications ought to have been considered and disposed of on merits in accordance with the subsequent notification. The learned Additional Solicitor General also has no serious objection for this. 53. For the reasons stated above, the impugned proceedings in these writ petitions cannot be sustained and accordingly the same are set aside and the matters are remitted back to the second respondent Director General of Health Services for fresh disposal in the light of the directions issued above. No cost." 6. Therefore, the learned counsel for the petitioner had submitted that this Court may be pleased to pass a similar order with certain directions, as found in the decision of this Court, dated 8.6.2001, since a number of writ petitions of a similar nature have been disposed of by this Court following the said order. 7. The learned counsel appearing on behalf of the respondents has also admitted the fact that a number of writ petitions have been disposed of by this Court, by following the order, dated 8.6.2001, made in W.P.Nos.2110 of 1998 and 3652 and 3654 of 1999. 8. In view of the submissions of the learned counsels appearing on behalf of the petitioner, as well as the respondents and in view of the order, dated 8.6.2001, made in W.P.Nos.2110 of 1998 and 3652 and 3654 of 1999, the impugned proceedings of the first respondent, dated 2.2.2001, is set aside and the matter is remitted to the first respondent for fresh disposal in the light of the directions issued in W.P.Nos.2110 of 1998 and 3652 and 3654 of 1999. The writ petition is disposed of with the above directions. No costs. Csh Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.Directorate General of health Services (M.G.Section) Nirman Bhavan, New Delhi repd., by its Director. 2.Deputy Director General (Medical) Directorate General of Health Services (MG) Section, Nirman Bhavan, New Delhi 3.Commissioner of Customs Air Cargo Complex, Meenambakkam, Chennai 600 027. 4. The Secretary to Government, State of Tamil Nadu Health and Family Welfare Department, Fort St. George, Chennai-600 009. 5. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. Devendran, Advocate, SCCG SR No.47032 + 1 cc to M/s. Satish Parasaran, Advocate, SR No.47141 + 1 cc to the Government Pleader, High Court, Madras SR No.47486 Writ Petition No.3898 of 2001 LA(CO) SR/29.10.2008 https://hcservices.ecourts.gov.in/hcservices/