IMPORTANT POINT
If an applicant is entitled to benefit under two different Notifications or under two different Heads he can claim more benefit and it is duty of authorities to grant benefit if applicant is otherwise entitled to such benefit.

Headnote:Custom and Excise — Exemption Notification No. 64/88-Cus dated 1-3-1988 — If an applicant does not claim benefit under a particular notification at initial stage, he is not debarred, prohibited or estopped from claiming such benefit at later stage — Appellant Society imported medical equipments for use in its charitable hospital — Table in Exemption Notification classified hospitals in four categories Appellant claimed benefit under category 2 and benefit was granted — Since appellant claimed to be entitled to exemption in category 3 also it applied for benefit under that category also — Deputy Director General (Medical) DGHS rejected application only on ground that applicant applied for exemption in category 2 which was granted, it was not open to apply for exemption in category 3 also — High Court upheld order in writ — Appeal — Whether non-consideration of application by Authority was in consonance with law? No.
       Held : It is, no doubt, true that initially the appellant claimed exemption under category 2 of exemption notification which was granted. That, however, does not mean that the appellant could not claim exemption under category 3. So far as cancellation of exemption under category 2 is concerned, we are not called upon to decide legality or otherwise of the said decision as it has not been challenged before us in the present proceedings. The short question which we have to answer is whether the appellant could claim exemption under category 3 and non-consideration of the said application by the Deputy Director General (Medical) is in consonance with law. Our reply is in the negative. And we are supported in our view by the decisions of this Court. (Para 10)
       Even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage. (Para 15)
       In the instant case, the ground which weighed with the Deputy Director General (Medical), DGHS for non-considering the prayer of the appellant was that earlier, exemption was sought under category 2 of exemption notification, not under category 3 of exemption notification and exemption under category 2 was withdrawn. This is hardly a ground sustainable in law. On the contrary, well settled law is that in case the applicant is entitled to benefit under two different Notifications or under two different Heads, he can claim more benefit and it is the duty of the authorities to grant such benefits if the applicant is otherwise entitled to such benefit. Therefore, non-consideration on the part of the Deputy Director General (Medical), DGHS to the prayer of the appellant in claiming exemption under category 3 of the notification is illegal and improper. The prayer ought to have been considered and decided on merits. Grant of exemption under category 2 of the notification or withdrawal of the said benefit cannot come in the way of the applicant in claiming exemption under category 3 if the conditions laid down thereunder have been fulfilled. The High Court also committed the same error and hence the order of the High Court also suffers from the same infirmity and is liable to be set aside. (Para 16)
       For the foregoing reasons, the appeal deserves to be allowed and is accordingly allowed. The respondent-authorities are directed to re-consider the case of the appellant as to exemption in category 3 of the exemption notification strictly in accordance with law, on its own merits and without being inhibited by the observations made by us hereinabove. The appeal is allowed with costs. (Para 21)

JUDGMENT

C.K. Thakker, J. — Leave granted.

2. This appeal has been filed against a common judgment and order passed by the High Court of Andhra Pradesh, Hyderabad on December 31, 2004 in Writ Petition Nos. 22734 & 22735 of 1996 and 3355 of 2001.

3. Few facts which are necessary for understanding the controversy are that the appellant–Share Medical Care is a Society registered under the Andhra Pradesh (Telengana Area) Public Societies Act, 1350 Fasli (Act 1 of 1350 F) (‘Society’ for short) and owes its origin to the desire of Non Resident Indian (NRI) Scientists and Doctors based in the United States of America (USA). The aim of the Society is to share the advanced technology with the citizens of India. The appellant-Society was established with the intention to construct and run hospitals, medical and diagnostic centers, etc. It is a charitable hospital and is run on ‘no-profit’ basis. It is located at village Ghanapur, about 40-50 kms away from the city of Hyderabad. It started its activities in the year 1993. It has specialized in treatment of heart and related ailments having the latest equipments and specialist doctors.

4. In the year 1992-93, the appellant-Society imported certain medical equipments for the use in its charitable hospital. According to the appellant, under Notification No. 64/88-Cus dated March 1, 1988, exemptions were granted to hospital equipments imported by specified category of hospitals (charitable) subject to certification by Directorate General of Health Services (DGHS). The table in the notification classified hospitals in four categories. According to the appellant, it falls under Para No.3 of the table of notification.

5. The appellant, however, along with several other hospitals, had applied for the benefit of exemption notification not under para 3 but para 2 of the table. The benefit of exemption was granted. Since the Society was also entitled to exemption under para 3 of the table, an application was made to DGHS highlighting the fact that the appellant is a non-profit organization and had been permitted to import medical equipments by DGHS by certification. It has been registered as an institution to receive donations in foreign exchange and since the area of operations of the main hospital at Ghanapur and the Rural Health Hospital are in rural areas, it would be entitled to invoke para 3 of the table of notification of exemption. The Deputy Director General (Medical), DGHS, by an order dated January 25, 2000 rejected the application of the appellant observing therein that initially the request was made by the appellant for exemption under para 2 of the notification and accordingly, the institution was granted such exemption. It was, therefore, not open to apply for exemption under para 3 of the table of the exemption notification and the application was liable to be rejected.

6. Being aggrieved by the above order passed by the Deputy Director General (Medical), the appellant-Society filed the above petitions in the High Court of Andhra Pradesh. The High Court also dismissed the petitions observing that it was not in dispute that the appellant (petitioner) claimed exemption in respect of import of hospital equipments and was allowed on the basis of its prayer under category para 2 of the table. The High Court noted that the learned counsel for the appellant-petitioner relied upon certain decisions in support of the contention that a categorization could be changed but it held that the exemption was granted in category 2 of the table, certain information was sought which was not supplied by the Society and the exemption was withdrawn. Regarding category 3, however, the High Court observed that when the appellant did not fulfill conditions relatable to category 2 institution, its claim for conversion of categorization under category 3 was untenable. Accordingly, all petitions were dismissed.

7. We have heard learned counsel for the parties.

8. Learned counsel for the appellant submitted that it is

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2007 Supreme(SC) 244

IMPORTANT POINT If an applicant is entitled to benefit under two different Notifications or under two different Heads he can claim more benefit and it is duty of authorities to grant benefit if applicant is otherwise entitled to such benefit.

Cases Referred (5)

IMPORTANT POINT
If an applicant is entitled to benefit under two different Notifications or under two different Heads he can claim more benefit and it is duty of authorities to grant benefit if applicant is otherwise entitled to such benefit.