M/S. Anadromeda Foundation India P. Ltd. Vs. D.G.H.S. & Ors. [2008]
INSC 967 (16
May 2008)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO................/2008 (arising out
of SLP(Civil) No. 6536/2006) M/s. Andromeda Foundation India P.Ltd.
...Appellant D.G.H.S. & Ors. ....Respondents
HARJIT SINGH BEDI,J.
1. Leave granted.
2. This appeal is directed against
the judgment of the Andhra Pradesh High Court which, while exercising its writ
jurisdiction under Article 226 of the Constitution, has dismissed the Writ
Petition questioning the validity 2 of the order dated 9th December 1997 issued
by the Director General Health Services, New Delhi. The facts of the case are
as under:
3. The appellant herein, is a
private limited company established for the purpose of conducting diagnostic
tests and treating patients with specific Andrological problems. On 1st March
1988, a Notification was issued by the Government of India whereby medical
equipment imported for specified purposes, was exempted from the payment of
customs duty. Taking 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 3 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
appellant in its reply dated 28th July 1997 pointed out that this equipment had
not been imported, but gave the other details to the respondent.
Respondent No.1, however, wrote
another letter dated 6th October 1997 to the appellant giving 10 days time to
furnish the information that had been sought. Some additional information was
supplied but it appears that respondent No.1 was not satisfied on which, vide 4
annexure P5 dated 6th October 1997 the appellant was refused the installation
certificate for the imported medical equipment. The appellant once again wrote
to respondent No.1 that the required information had been supplied on which a
reply dated 9th December 1997 was received from respondent No.1 that the
information had, in fact, not been furnished and in particular referred to the
details of the use of the "Hand Held Recording Doppler" and the
details of the free services which had to be given to the poorest individuals.
Vide order dated 9th December 1997, respondent No.1 thereupon withdrew the
Customs Duty Exemption Certificate which had been issued to the appellant. The
appellant submitted a detailed Memorandum to respondent No.1 on 6th February
1998 but to no effect. Being aggrieved thereby, the appellant filed the present
Writ Petition challenging the order dated 9th December 1997 and praying for a
direction to respondent No.1 to issue the Installation Certificate with respect
to the imported equipment. A counter affidavit was filed in response to the
Writ 5 Petition and on a consideration of the matter, the Division Bench of the
High Court dismissed the Writ Petition by the impugned judgment dated 8th
November, 2005. It is in these circumstances that the present matter is before
us.
4. Mr. Rana Mukherjee, the learned
counsel for the appellant, has raised several arguments in the course of the
hearing. He has first and foremost submitted that as the representation filed
by the appellant was still pending decision, it would be appropriate that a
direction be issued for a decision in that matter. He has also submitted that
from the impugned judgment it appeared that the exemption granted to the
appellant had been cancelled due to the following reasons: (1) that the data
with respect to the use of the "Hand Held Recording Doppler" had not
been supplied, (2) that the data pertaining to the OPD/IPD cases had not been
supplied,(3) free OPD for one equipment had been found to be less than 40% for
one year and (4) that information furnished by the institute did not clarify
the OPD/IPD 6 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 (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 7 appellant a show cause
notice before making the impugned order and as this procedure too had not been
adopted, the High Court judgment was not maintainable.
5. The learned counsel for the
respondent has, however, pointed out that as per the guidelines issued by the
Ministry on 10th August 1993 superceding the earlier ones, a proforma for the
more effective monitoring of the use of the equipment had been devised and as
these guidelines had not been followed by the appellant, despite being called
upon to do so, and as the necessary information had not been furnished by the
appellant in the prescribed format, there was no merit in the petition.
For this plea, the learned counsel
has also relied upon Jagdish Cancer & Research Centre's case (supra). It
has also been pleaded that in the light of the judgment in Mediwell Hospital
& Health Care Pvt. Ltd. vs.
Union of India & Ors. (1997) 1
SCC 759, the submission of the necessary information in the prescribed format
was a continuing obligation and as such it was incumbent on the appellant to
have 8 furnished the information as per the guidelines and on its failure to do
so, the action that had been taken was fully justified.
6. We have considered the
arguments advanced by the learned counsel for the parties. Undoubtedly, the
representation dated 6th February 1998 had been filed by the appellant before
the concerned respondent and the same has not yet been decided. It has
accordingly been submitted by Mr. Mukherjee that it would be proper to set
aside the order of the High Court and to issue a direction that the
representation be first decided. We are unable to accept this plea at this
belated stage as the appellant had filed a writ petition seeking the courts`
intervention in the matter and having failed he cannot now claim a decision on
the representation. We also find that section 124 of the Customs Act has
absolutely no applicability to the facts of the present case as this provision
deals with the confiscation of goods, which is not the case before us.
9
7. On the contrary, we are of the
opinion that the appellant's general conduct has been most unsatisfactory, as
despite being called upon to furnish specific details time and again, it had
not done so. We have seen the information furnished by the appellant on 20th
July 1997, a copy appended as annexure P4 to the SLP Paper Book. We find that
it does not even remotely fulfill the requirement 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 being duly complied with after getting the benefit
10 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
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 and entire indoor patients of the low income group
whose income is less than Rs.500 per month would be able to receive free
treatment in the Institute. That objective must be achieved at any cost, and
the very authority who have granted such certificate of exemption would ensure
that the obligation imposed on the persons availing of the exemption
notification are being duly carried out and on being satisfied that the said
obligations have not been discharged they can enforce realization of the
customs duty from them.
It is needless to reiterate that
all the persons including the appellant who had the benefit of importing the
hospital equipment with exemption of customs duty under the notification should
notify in the local newspaper every month the total number of 11 patients they
have treated and whether 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 condition 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 undertaking by all such persons.
This condition becomes a part of the exemption order application and strictly
be enforced by all concerned including the police personnel when complaints of
non- compliance are made by the indigent persons, on denial of such treatment
in the hospital concerned or diagnostic centres, a the case may be."
6. It has been fairly pointed out
by both the learned counsel that this judgment has been overruled in a
subsequent matter on a different point, but the observations hereinabove quoted
still hold the field. In Jagdish Cancer & Research Centre's case (supra),
this Court was again called upon to consider the implications of the
non-compliance with the conditions of import and it was observed thus:
12 "Learned counsel for the
respondent has next urged that looking to the total picture of the free
treatment provided by the Centre, it is to be noticed that shortfall in
providing free treatment is marginal. The percentage of persons provided free
treatment cannot be precise.
During a certain period, it may be
a little less or a little higher. He has also drawn our attention to a chart
prepared by the respondent and filed with an affidavit before CEGAT, showing
that the treatment provided to outdoor patients is 39.8 per cent 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 13 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 deficiency in the previous or the following year. In any case, over and
above all, it has not been in dispute that the Centre did not have inpatient
facility. According to the condition of notification, 10% of the total beds in
the hospital are to be kept reserved for patients of families having an income
of less than Rs.500 per month. The case of the Centre, in this connection, is
that they had an arrangement with another hospital in the proximity which is a
sister concern of the Centre, with whom the Centre had entered into an
agreement for reserving 10 per cent beds. Payments in respect of these
inpatients is to be made by the Centre. We feel that 10 per cent of the total
number of beds are supposed to be reserved for patients of such families in the
hospital where the equipment is installed. The purpose of the notification for
grant of exemption from payment of customs duty would not be served by making
payment of expenditure incurred on some inpatients in some other hospital as
alleged. It has also not been shown that the alleged arrangements had the
approval of the authority concerned or that it was brought to their notice at
all."
14
8. It has been contended by Mr.
Mukherjee that as per the information provided by the appellant in his
proforma, there was only a marginal deviation in the provision of free
facilities to those having an income of less than Rs.500 per month. We see from
a perusal of the record that this was not the only factor which had led to the
action against the appellant as several cumulative factors had been taken into
account, the primary one being the non-submission of the information in the prescribed
format. We have also perused the extract of the OPD register furnished by the
appellant in its own format with regard to the provision of free facilities to
the poor. We cannot but remark that it hides more than it reveals.
9. We are also conscious of the
large scale misuse of the medical equipment imported under the exemption
notification, and in the light of the observations in Mediwell's case supra ,
it is essential that the authorities regulatory monitor the use of the
equipment.
We accordingly find no merit in
this appeal. Dismissed.
15
.................................J.
(TARUN CHATTERJEE )
.................................J.
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