| SooperKanoon Citation | sooperkanoon.com/14405 |
| Court | Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi |
| Decided On | Sep-25-1998 |
| Reported in | (1999)(106)ELT250TriDel |
| Appellant | Gujarat Cancer Society |
| Respondent | Commissioner of Customs |
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = ''include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]1. these appeals are filed against the common order-in-original dated 8-7-1993 passed by the collector of customs, bombay.2. the brief facts of the case are that m/s. gujarat cancer society made import of a machine named extra corpoal shockwave lithotripsy equipment known as "lithostar" and claimed the benefit of notification no. 279/83-cus., dated 19-3-1983. the gujarat cancer society also made import of another machine nuclear magnetic resonance imagine mri system and availed the benefit of notification no. 64/88-cus. these machines were found installed in the premises of m/s. shah dignostic institution, which was run by one dr. viral c. shah. these machines were imported and the bill of entry was filed in the name of gujarat cancer society and can bank financial service ltd. in.....Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = ''include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Viral C. Shah and on M/s. Shah Dignostic Institution.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
He therefore prays that the penalty imposed upon these appellants is not sustainable.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 15include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 16include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 17include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 18include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 19include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 20include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 21include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 22include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 23include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
17. From the evidence on record, we find that agreement between Dr.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 24include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 25include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 26include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 27include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.
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These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p align="justify">2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p align="justify">Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p align="justify">3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p align="justify">He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p align="justify">4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p align="justify">5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p align="justify">6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p align="justify">Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p align="justify">7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p align="justify">8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p align="justify">9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p align="justify">Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p align="justify">He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p align="justify">10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p align="justify">11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p align="justify">Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p align="justify">12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p align="justify">13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p align="justify">14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p align="justify">He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p align="justify">15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p align="justify">16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p align="justify">17. From the evidence on record, we find that agreement between Dr.</p><p align="justify">Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p align="justify">Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p align="justify">19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p align="justify">20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p align="justify">21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'gujarat-cancer-society-vs-commissioner-customs', 'args' => array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) ) $title_for_layout = 'Gujarat Cancer Society Vs Commissioner of Customs - Citation 14405 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '14405', 'acts' => null, 'appealno' => null, 'appellant' => 'Gujarat Cancer Society', 'authreffered' => null, 'casename' => 'Gujarat Cancer Society Vs. Commissioner of Customs', 'casenote' => '', 'caseanalysis' => '', 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi', 'court_type' => 'TRI', 'decidedon' => '1998-09-25', 'deposition' => null, 'favorof' => '', 'findings' => '', 'judge' => '', 'judgement' => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.</p><p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.</p><p>Viral C. Shah and on M/s. Shah Dignostic Institution.</p><p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.</p><p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.</p><p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.</p><p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.</p><p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.</p><p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.</p><p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.</p><p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.</p><p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.</p><p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.</p><p>He therefore prays that the penalty imposed upon these appellants is not sustainable.</p><p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.</p><p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.</p><p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.</p><p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.</p><p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.</p><p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.</p><p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.</p><p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.</p><p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.</p><p>17. From the evidence on record, we find that agreement between Dr.</p><p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.</p><p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.</p><p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.</p><p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.</p><p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.', 'observations' => '', 'overruledby' => null, 'prhistory' => null, 'pubs' => '(1999)(106)ELT250TriDel', 'ratiodecidendi' => null, 'respondent' => 'Commissioner of Customs', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'gujarat-cancer-society-vs-commissioner-customs' $args = array( (int) 0 => '14405', (int) 1 => 'gujarat-cancer-society-vs-commissioner-customs' ) $url = 'https://sooperkanoon.com/case/amp/14405/gujarat-cancer-society-vs-commissioner-customs' $ctype = '' $content = array( (int) 0 => ' 1. These appeals are filed against the common Order-in-Original dated 8-7-1993 passed by the Collector of Customs, Bombay.', (int) 1 => '<p>2. The brief facts of the case are that M/s. Gujarat Cancer Society made import of a machine named Extra Corpoal Shockwave lithotripsy equipment known as "Lithostar" and claimed the benefit of Notification No. 279/83-Cus., dated 19-3-1983. The Gujarat Cancer Society also made import of another machine Nuclear Magnetic Resonance Imagine MRI system and availed the benefit of Notification No. 64/88-Cus. These machines were found installed in the premises of M/s. Shah Dignostic Institution, which was run by one Dr. Viral C. Shah. These machines were imported and the bill of entry was filed in the name of Gujarat Cancer Society and Can Bank Financial Service Ltd. in respect of the first machine and in respect of the second machine, the bill of entry was filed in the name M/s. Gujarat Cancer Society and the Leasing Company Industrial Investment Corporation of India Ltd. It was found during the investigation that these machines were cleared without payment of duty under Notification No. 279/83-Cus. and 64/88-Cus. by the Gujarat Cancer Society. These machines were found working in the premises of Shah Dignostic Institution which was a Pvt. Institution. On the basis of this, a show cause notice was issued to the appellants and thereafter the impugned order was passed and in the impugned order, the adjudicating authority ordered confiscation of both the machines under Section 111(o) of the Customs Act, 1962 and after taking a lenient view ordered release of the machine on payment of redemption fine of Rs. One only. The Collector of Customs in the impugned order denied the benefit of concessional duty under Notification No. 279/83 and 64-88 and thus confirmed the demand of Rs. 2,16,80,444 under Section 28 of the Customs Act, 1962. The Collector of Customs further held that the duty will have to be paid by M/s. Gujarat Cancer Society and Can Bank Financial Service Ltd. as well as the Industrial Credit and Investment Corporation of India Ltd. being the joint holder of the imported machine. A personal penalty of Rs. 10 lakhs was also imposed on Dr.', (int) 2 => '<p>Viral C. Shah and on M/s. Shah Dignostic Institution.', (int) 3 => '<p>3. Ld. Counsel appearing on behalf of the Gujarat Cancer Society submits that Gujarat Cancer Society is a charitable organisation and the main aim is to serve the cancer patients on an affordable cost. He submits that Gujarat Cancer Society was running the Cancer Hospital named as M.P. Shah Cancer Hospital in the Campus of Civil Hospital Ahmedabad and in the year 1966, the said Cancer Hospital was given to Government of Gujarat for running and maintenance thereof. He submits that in the year 1971, the Government of Gujarat decided to constitute the said cancer Hospital into an autonomous cancer Institute and the Institute was renamed as Gujarat Cancer and Research Institute and it was registered as a Society under the Societes Registration Act, 1860.', (int) 4 => '<p>He submits that in the year 1972, the agreement was reached amongst the Government of Gujarat, Gujarat Cancer Society and Gujarat Cancer Research Institution. Under this agreement the Cancer Hospital situated in the Civil Hospital at Ahmedabad was to be managed and controlled jointly by the Gujarat Cancer Society and Gujarat Cancer and Research Institute and Government of Gujarat.', (int) 5 => '<p>4. He further submits that on 21st September 1982, the Government of Gujarat granted a plot of land in the campus of the Civil Hospital on lease to the M/s. Gujarat Cancer Society for constructing the research building and other ancillary department and in order to serve the patients better the M/s. Gujarat Cancer Society desired to import the machines in question which were useful in the early diagnosis for the cancer as well as for removing the kidney stones without any major surgery. The machines were such which required expert knowledge and skill for their operation. For this purpose, the proposal was received by Gujarat Cancer Society from M/s. Shah Diagnostic Pvt. Ltd. which was run by Dr. Viral C. Shah, to make import and run these machines. The machines were imported claiming the benefit of relevant notification which was duly granted by the Customs Authority.', (int) 6 => '<p>5. He further submits that arrangements made with Dr. Viral C. Shah for running and operating the said machines was also agreeable to the Government of Gujarat. He submits that with the consent of Gujarat Government the terms and conditions of the agreement with Dr. Viral C.Shah were decided. On importation of the machines in question, these were installed in the premises of cancer complex at Ahmedabad.', (int) 7 => '<p>6. He submits that ultimate ownership of the entire Cancer Complex comprising of the machines in dispute vest jointly in the name of M/s.', (int) 8 => '<p>Gujarat Cancer Society, Gujarat Cancer Research Institute and the Government of Gujarat. In these circumstances M/s. Shah Diagnostic Institute and Dr. Viral C. Shah cannot said to be prime beneficiary of the same. He further submits that it is admitted fact that Cancer Complex and Allied Unite functioning from the Cancer Hospital Complex Ahmedabad are being run and managed by and controlled by the Gujarat Cancer Society and Gujarat Research Institute and Government of Gujarat jointly. He further submits that the entire land of the Cancer Hospital belonged to the Government of Gujarat, a part of which has been given on lease to the Gujarat Cancer Society for constructing and running the building and other ancillary Department like MRI and Lythocrpsy Centre.', (int) 9 => '<p>7. He submits that in view of high cost of the machines and the expert skill required to operate the same, it was not possible either for Gujarat Cancer Society, Gujarat Cancer Research Institute or Government of Gujarat to bear the cost and make proper use of the machines for the benefit of the public. He submits that the Collector of Customs in the impugned order failed to take into consideration the fact that agreement entered into with Dr. Viral C. Shah was purely for achieving the object of Gujarat Cancer Society to give the benefit of these machines to the general public. He submits that M/s. Gujarat Cancer Society had fulfilled all the conditions laid down in the relevant notifications, therefore the machines were legally imported and are entitled for the benefit of the relevant notification.', (int) 10 => '<p>8. He further submits that demand is time barred as machines were imported and were assessed to duty under the relevant notification. The benefit of notification were granted to the Customs Authority after satisfying the fulfilment of the conditions laid down in the notification and that appellants had not suppressed anything from the respondents. He submits that therefore in these circumstances, the extended period of limitation is not invokable.', (int) 11 => '<p>9. Counsel appearing on behalf of the Shah Dignostic Institute and Dr.', (int) 12 => '<p>Viral C. Shah submits that the arrangement made with the Gujarat Cancer Society by the appellant is in the nature of management contract and there is not transfer of ownership of the said machine in favour of the M/s. Dignostic Institution and or in favour of Dr. Viral C. Shah. He submits that agreement made by Dr. Viral C. Shah with Gujarat Cancer Society are in law valid contracts and are not in breech of any provision of law. The ownership and right in respect of the machines in dispute vests in the name of Gujarat Cancer Society. He submits that even the charges received by Shah Diagnostic Institution from the patients are fixed as per consultation with the Gujarat Cancer Society.', (int) 13 => '<p>He therefore prays that the penalty imposed upon these appellants is not sustainable.', (int) 14 => '<p>10. The Counsel on behalf of the financial institution i.e. Can Bank Financial Service and Industrial Credit and Investment corporation of India, submits that the duty was also demanded from these appellants, whereas in the show cause notice no such demand was made against these appellants. In the show cause notice only the penalty was proposed against on these appellants. He therefore prays that the demand for duty from these two appellants is not sustainable.', (int) 15 => '<p>11. Heard Shri M.C. Sharma, Chief Departmental Representative. Shri Sharma submits that the Notification Nos. 279/83-Cus., dated 3-9-1983 and Notification 64/88-Cus., dated 1-3-1988 provides exemption from Customs duty on equipments, apparatus and appliances, import of which is approved either generally or in each case by the Government of India under Ministry of Health and Family Welfare or by the Director General of Health Services as essential for use in hospital. He submits that the machines in question were run by Dr. Viral C. Shah in the premises of Shah Digonstic Institution which is not a hospital. He further submits that there were conditions in the notifications that 40% of the outdoor patient should be treated as free of charge. He also submits that there are other conditions that treatment of free indoor patients belonging to low income group families. He submits that the appellant had not produced any evidence to show that these conditions imposed in the notification were complied with by the appellants. He relied upon the decision of the Hon'ble Supreme Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T. 425 and submits that the Hon'ble Supreme Court while interpreting the provisions of Notification 64/88-Cus. held that Dignostic Centre run by private individual purely on commercial basis are not entitled for such exemption. He further submits that Hon'ble Supreme Court held that condition specified in the notification for granting the exemption are continuing obligation on the part of the importer. He submits that the machines were imported in fact by Dr.', (int) 16 => '<p>Viral C. Shah and the name of Gujarat Cancer Society is used just to avail the exemption from the Customs duty. He therefore prays that the appeals be dismissed.', (int) 17 => '<p>12. Heard both sides. In this case the machines in question were imported in the name of M/s. Gujarat Cancer Society and the benefit of Notification Nos. 279/93 and 64/88-Cus. was availed in respect of these machines. Ld. Counsel appearing on behalf of the Gujarat Cancer Society pleaded that the machines were imported by M/s. Gujarat Cancer Society and it was only a temporary arrangement for Dr. Viral C. Shah to run these machines.', (int) 18 => '<p>13. We find from the facts on record that Gujarat Cancer Society had entered into the agreement with Dr. Viral C. Shah who is Director of Shah Dignostic Institute on 24-2-1987 for import of the machines in question. As per the terms of the agreement Dr. Viral C. Shah has to arrange finance and also to arrange importation of the machines. He was also entitled to run the machines for 10 years. As per the agreement he was authorised to lease the said machines to any financial Institution, Company, Bank or leasing company for obtaining a loan and in return he was responsible to pay the lease rent dues. On 11-3-1987, power of attorney was given by Gujarat Cancer Society to Dr. Viral C. Shah for this purpose. From the record, we find that the Government of Gujarat had not taken any responsibility to give any financial aid for purchase of machine or repayment of lease money, lease rental or recurring expenditure towards the purchase for import, for running and maintaining of the machines. The Import licence was in the name of Gujarat Cancer Society in respect of both the machines. The bill of entry was also filed by the financial institution on account of Gujarat Cancer Society.', (int) 19 => '<p>14. During investigation statement of Mr. Narinder N. Patel, Director of Gujarat Cancer and Research Institute, Ahmedabad was also recorded under Section 108 of the Customs Act. In his statement he submits that the Gujarat Cancer Research Institute and Gujarat Cancer Society are two different Institutions. He also submitted that Gujarat Cancer Research Institute had not played any part for acquiring finance for the machines or for the finance for building to house these machines.', (int) 20 => '<p>He also admitted in his statement that the decision to run the machines by M/s. Shah Dignostic Institute has been taken much before the import of the machines.', (int) 21 => '<p>15. Statement of Narinder D. Patel, Secretary of Gujarat Cancer Society was also recorded under Section 108 of the Customs Act. In his statement he confirmed that Gujarat Cancer Society and Gujarat Cancer Research Institute are two different bodies having separate legal identity. He admitted that the machines were imported only by Gujarat Cancer Society. He also admitted that machines were financed by the financial institution and the finance was arranged by Dr. Viral C.Shah. He submits that lease rent of the financial companies are being paid by Dr. Viral C. Shah. He also admitted that there is no hospital under the Control of Gujarat Cancer Society.', (int) 22 => '<p>16. In his statement under Section 108 Dr. Viral C. Shah submits that instalments of lease rent are being paid from the account of Shah Dignostic Institute.', (int) 23 => '<p>17. From the evidence on record, we find that agreement between Dr.', (int) 24 => '<p>Shah and Gujarat Cancer Society shows that entire import shipment, installation, insurance of the machines in question were borne by Dr.', (int) 25 => '<p>Viral C. Shah at his cost. Even the building in which the machines were installed was also constructed by Dr. Viral C. Shah from his own resources.Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India reported in 1997 (89) E.L.T.425 held that the Dignostic Centre run by private individual purely on commercial basis is not entitled to the exemption under the Notification No. 64/88 issued by the Central Government. The Hon'ble Supreme Court further held that the notification granting exemption must be construed to continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that who have imported equipment without payment of Customs duty to give free treatment to 40% of the out-door patients and as well as to give free treatment to indoor patients belonging to low income group families.', (int) 26 => '<p>19. In the present case the machines in question were cleared without payment of duty under Notification No. 64/88-Cus., dated 1-3-1988 which was under consideration before the Hon'ble Supreme Court in above mentioned case. We find the earlier Notification No. 279/83, dated 30-9-1983 was also similarly worded with the same conditions of treatment of 40% free treatment of 40% of out-door patients and free treatment to indoor patients belonging to low income group families. In both the notifications there was a condition that at lease 10% of the hospital beds be reserved for patients belonging to families with low income of less than 500 per month for free treatment.', (int) 27 => '<p>20. We find from the evidence on record that M/s. Shah Dignostic Institute or M/s. Gujarat Cancer Society importers of the goods were not running any hospital rather Shah Dignostic Institute was only a dignostic centre which according to the Hon'ble Supreme Court is not entitled for the benefit of exemption under the notification. In respect of time bar, we find that Hon'ble Supreme Court in the case of Mediwell Hospital & Health Care Pvt. Ltd. (supra) held that this is a continuous obligation on the importer to comply with the conditions of notification and in the present case the appellant M/s. Gujarat Cancer Society the importer had not complied with the conditions of notification hence we find no merit in the plea of the appellant that demand is time barred. In view of the above decision of the Hon'ble Supreme Court, we find no merit in the appeals filed by M/s. Gujarat Cancer Society, M/s. Shah Dignostic Institute and Dr. Viral C. Shah.', (int) 28 => '<p>21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.' ) $paragraphAfter = (int) 1 $cnt = (int) 29 $i = (int) 28include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
21. In the appeals filed by Industrial Credit and Investment corporation of India Ltd. and Can Bank Financial Services, we find force in the submissions made by ld. Counsel. We find that in the show cause notice no demand of duty was made from these appellants. Only penal action was proposed in the show cause notice. However in the impugned order duty was confirmed against these appellants along with M/s. Gujarat Cancer Society in respect of the machines in question. As no demand was made by the Revenue in the show cause notice in respect of duty, therefore we find that confirmation of demand of duty against these appellants is not sustainable. Therefore the appeals filed by these appellants the Industrial Credit & Investment corporation of India and Can Bank Financial Service numbered as C/1836/93-B2 and C/1823/93-B2 are allowed. Consequently the Appeal Nos. C/1814/93-B2 filed by M/s. Gujarat Cancer Society and Appeal No. C/183/93-B2 filed by Dr. Shah Dignostic Institute and Dr. Viral C. Shah are dismissed.