BALABHAI NANAVATI HOSPITAL Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) It is common ground that the questions of law (d) to (j) are concerned, the same are covered by the judgments of this Court in the case of Wockhardt Hospital, 2006 200 ELT 15 and in the case of Bombay Hospital Trust, 2006 201 ELT 555.

(2.) So far as questions (a), (b) and (c) are concerned, it is admitted position that the appellant obtained Customs Duty Exemption Certificate from the Directorate General of Health Services for import of various hospital equipments under Notification No. 64/88-Cus., dated 1-3-1988. The certificate states that the appellant was covered under category 2 of the table annexed to the Notification. The categorisation of the appellant was cancelled. Thereafter, the appellant challenged the cancellation and then applied for change of classification from category 2 to 1. The learned counsel appearing for the appellant relying on a judgment of the Supreme Court in the case of Share Medical Care V/s. Union of India & Others, 2007 4 SCC 573 submits that he was not estopped from applying for change from category 2 to category 1. However, it appears that the case of the appellant is covered by the judgment of the Supreme Court in the case of Jaslok Hospital & Research Centre V/s. Union of India & Others, 2007 218 ELT 170. The Supreme Court was considering the judgment of a Division Bench of this Court in the case of Jaslok Hospital & Research Centre V/s. Union of India. In that case, the hospital was categorised under category 2. The categorisation was cancelled. It appears that there was no challenge to the cancellation and that application was made for change in category. The Supreme Court in that situation has observed that in order to enable a hospital to claim change in the categorisation, the hospital must be on the date, on which the application is made for change in categorisation categorised in some category. In other words, an application can be made for change of a alive categorisation. Following observations in Para 17 of the judgment of the Supreme Court in the case of Jaslok Hospital & Research Centre are relevant, which reads thus :

(3.) The learned counsel for the appellant submits that the distinguishing feature between the case of the appellant and the case decided by the Supreme Court in the case of Jaslok Hospital & Research Centre is that in that case cancellation was not challenged by the hospital and was accepted and application for change was made after three years. In the present case, according to the learned counsel as the appellant has challenged cancellation and has thereafter immediately applied for change in the category, the law laid down by the Supreme Court in the case of Jaslok Hospital does not apply. In our opinion, the features pointed out by the learned counsel for the appellant are not determinative. The law laid down by the Supreme Court in Para 17 in Jaslok Hospital's case is clear that the date on which the hospital applies for change in categorisation, the hospital must be categorised in some category. Change can be effected only of a live categorisation, after a hospital ceases to be entitled to the exemption, because of the cancellation of the categorisation, there is no question of changing the category. It is an admitted position that though the appellant has filed petition challenging the cancellation, there is no interim order operating and, therefore, cancellation has taken effect. One more aspect that is to be noted, in our opinion, is that in Jaslok Hospital 's case, the Supreme Court has considered the judgment in the case of Share Medical Care , where it appears that application for change in the category was not made after cancellation. The judgment in the case of Jaslok Hospital is of a Larger Bench of the Supreme Court and a subsequent judgment, therefore, as per the law settled by the Supreme Court, we have no option but to follow the judgment of the Supreme Court in Jaslok Hospital 's case.