1. The dispute in the present appeal relates to the admissibility of exemption Notification No. 64/88-C.E., dated 1-3-88 to the various medical equipments imported free of duty by the appellants' hospital.
As per one of the conditions stipulated in the Notification, the appellants were required to provide medical, surgical and diagnostic treatment without any distinction of caste, creed, race, religion or language to at least 40% of all their outdoor patients. The dispute is in respect of the satisfaction of the said condition for which show cause notice alleging violation thereof, was issued to the appellants on 6-6-2000 proposing confirmation of demand of duty on the imported medical equipments and for confiscation of the same.
2. Vide the impugned order, the Commissioner of Customs (Airport), Kolkata has confiscated the goods in question with an option to the appellants to redeem the same on payment of redemption fine of Rs. 5.00 lakh (Rupees five lakh). In addition, duty of Rs, 56,46,415.00 (Rupees fifty six lakh forty six thousand four hundred fifteen) has also been confirmed and penalty of Rs. 1.00 lakh (Rupees one lakh) has been imposed under the provi-sions of Section 112(a) of the Customs Act, 1962.
3. Dr. Samir Chakraborty, learned Advocate appearing for the appellants agrees that as per the latest decision of the Hon'ble Supreme Court in the case of Commr. of Cus. (Import), Mumbai v. Jagdish Cancer & Research Centre reported in 2001 (132) E.L.T. 257 (S.C.), fulfilment of post-importation conditions is a continuing obligation of the importer and in case of violation of any of the post-importation conditions, the goods are liable to confiscation and duty is liable to be paid. In such cases, the point of limitation under Section 28 of the Customs Act does not get attracted. However, Dr. Chakraborty submits that they have fulfilled the condition of providing at least 40% of free treatment to all their outdoor patients. Drawing out attention to the impugned order, he submits that the treatment provided by the hospital doctor through outreach medical work in the Community Development Programme, has not been taken into account by the adjudicating authority while arriving at the figure of 40%. He submits that the Notification provides for giving free treatment to 40% of the outdoor patients without any distinction of race, religion, creed or caste and there is no stipulation in the said Notification that all the outdoor patients must come to the hospital. Even where the Hospital extends the facilities to the outdoor patients at the premises of the patients, such facilities so extended by the hospital should be taken into account and the outdoor patients treated by them should be taken while computing the figure of 40% for the above purpose. He relies upon the Hon'ble Madras High Court's decision in the case of Apollo Hospital Enterprises Ltd. v. Union of India reported in [2001 (133) E.L.T. 58 (Mad.) = 2001 (46) RLT 249 (Madras)] wherein the Hon'ble High Court has held that the "outdoor patients" means not only those who come to the hospital for treatment but also covers those who are benefited by the treatment in the outdoor medical camps conducted by the hospital authorities. As such, he submits, that the adjudicating authority should have taken into consideration the treatment provided by them to the outdoor patients in their various medical camps, in which case the percentage exceeds for more than 40% as envisaged by the Notification.
4. After considering the above submissions made by Dr. Chak-raborty, we agree that the treatment given to the various persons in their outdoor medical camps, is required to be taken into consideration for computing the figure of 40% of the outdoor patients. The Hon'ble Madras High Court at Para 24 of their Judgment referred supra, has observed as under :- "In my opinion, the stand taken by the second respondent cannot be accepted. When it is contemplated that the hospital has to provide free treatment on an average, to at least 40% of their outdoor patients, the contemplation is that the hospital authorities should provide on average of at least 40% free treatment to the outdoor patients. The outdoor patients means those who are not admitted as inpatients in the hospital. In that case, the outdoor patients may be of those who come to the hospital for treatment and get the treatment without admitting themselves in the hospital. It may also refer those who are benefited by the treatment not by coming to the hospital but in the outdoor medical camps conducted by the hospital authorities. Whether Mohammed goes to the mountain or the mountain comes to Mohammed, the result is the same. In that since whether the outdoor patients comes to the hospital authorities extent their arm to the outdoor patients wherever they are, it will refer only to the free treatment given by the hospital authorities to the outdoor patients....." As such, applying the ratio of the above decision, we are of the view that the patients treated in the outdoor medical camps, are required to be taken into consideration for computing the average of 40% of the outdoor patients. Accordingly, we set aside the impugned order and remand the matter to the Commissioner for deciding the question of fulfilment of the above condition, after taking into account the outdoor patients treated in the medical camps. The appeal is thus allowed by way of remand. It is also seen that the adjudicating authority by referring to the appellants' reply has concluded that the outdoor patients treatment was being given by them only to the members of their Community. This has been vehemently challenged by the learned Advocate who submits that such treatment was being extended without any distinction of caste relied upon. In this connection, he also refers to a pamphlet published by the appellants, wherein the Patient Demographics show the percentage of the treatment given to the various members of the Community. He also submits that there is nothing on record to show that the appellants were only extending the facilities to members of their Community. From the impugned order, we find the above contention of the learned Advocate to be correct. However, inasmuch as the matter is being remanded for fresh determination about the fulfilment of the condition of providing 40% free treatment to outdoor patients, we direct the Commissioner to look into the said aspect also.