Judgement

PATTANAIK, J.:- Leave granted.

2. The appellant had applied to respondent No.2, Director General of Health Services, Ministry of Health and Family Welfare for grant of necessary certificate which would enable the appellant to import certain hospital equipments without payment of import duty in accordance with the notification No. 64/88-customs dated 1-3-1988. The said respondent No. 2 having refused to issue the certificate in question, the appellant filed a writ petition in the High Court of Punjab and Haryana which was registered as C.W.P. No. 1310 of 1995. The said writ petition having been dismissed by the High Court by the impugned judgment dated 31-1-1996 (reported in 1996(113) Pun LR 250) the appellant has approached this Court.

3. The case of the appellant in the nutshell is that the Government of India in exercise of power conferred by sub-section (1) of Section 25 of the Customs Act. 1962 (hereinafter referred to as the Act) had exempted levy of customs duty on import of hospital equipments imported by specified category of hospitals (Charitable) subject to certification from the Director General of Health Services. The appellant who had established a Modern Heart Institute and Research Centre at Chandigarh being desirous of importing sophisticated equipments like Stress Test System, Colour Doppler Holter Monitor Recorder, Tread Mill Test Machine, applied to the Director General for issuance of a certificate so that the machinery imported would not be liable for levy of customs duty. The respondent No. 2, by his letter dated 2-2-1993 after scrutinising the project report submitted by the appellant and on being satisfied that the import office equipments are essential for use in any hospital granted certificate for importing Marquette Max though the appellant was intending to Marquette Case 15. On receipt of the certificate dated 2-2-1993 the appellant applied for amendment of the exemption certificate. But no action was taken by the respondent No. 2. Ultimately the imported equipment arrived in India on 22nd March, 1993 and the appellant released the same on furnishing Bank Guarantee. Thereafter the appellant approached the respondent No. 2 for grant of exemption certificate as no order was passed by respondent No. 2 the appellant approached the High Court by filing a writ petition which was registered as W. P. No. 10717 of 1993. The said writ petition was disposed of by order dated 16-2-1994 directing the respondent No. 2 to take a final decision on the application of the appellant within 10 weeks and it was further ordered that the Bank Guarantee furnished by the appellant will not be encashed till then. On 12-8-94 the respondent No. 3 after due enquiry recommended for grant of certificate of exemption to the appellant but notwithstanding the said recommendation the respondent No. 2 by his order dated 26th December, 1994, refused to grant the exemption certificate for import of Marquette Case 15 which is undoubtedly one of the most essential and modern equipment necessary for combating the heart ailments. The appellant, therefore, had no other alternative than to file the writ petition registered as W. P. No. 1310 of 1995 which was dismissed by the impugned order dated 31st January, 1996. Hence this appeal by Special Leave.

4. The High Court in the impugned order came to the conclusion that the appellant is merely running a Diagnostic Centre and is not a hospital and as such the exemption notification dated 1-3-1988 will not cover the case of the appellant. The High Court also came to the conclusion that the appellant has got a commercial venture and the conditions stipulated in the exemption notification have not been satisfied and, therefore, the appellant was not entitled for issuance of mandamus for the grant of certificate in question.

5. Mr. Arun Jaitley, learned senior counsel appearing for the appellant contended that the expression "hospital" in the exemption notification brings within its sweep a Dia