Allahabad High Court
Keshlata Cancer Hospital Ltd. vs Union Of India And Others on 7 May, 2012
Bench: Ashok Bhushan, Prakash Krishna
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 32
Case :- CUSTOM APPEAL No. - 573 of 2012
Petitioner :- Keshlata Cancer Hospital Ltd.
Respondent :- Union Of India And Others
Petitioner Counsel :- Gopal Verma
Respondent Counsel :- A.S.G.I.,Ishan Shishu
Hon'ble Ashok Bhushan,J.
Hon'ble Prakash Krishna,J.
Heard Sri Bharat Ji Agrawal, learned Senior Counsel assisted by Sri Gopal Verma, learned counsel for the appellant and Sri R.C. Shukla, learned counsel for the department.
Sri Ishan Shishu, Advocate has filed his appearance slip on behalf of respondents no. 1 and 4. Let it be taken on record.
Sri R.C. Shukla, learned counsel for the department has raised a preliminary objection that this Court has no territorial jurisdiction to entertain the present appeal. He submits that the impugned order has been passed by Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Mumbai (hereinafter referred to as 'the Tribunal'). He further submits that the adjudicating authorities are also situate at Mumbai, hence no part of cause of action has arisen in this Court for entertaining the appeal. He submits that the jurisdiction to entertain the appeal would have been with the High Court of Bombay.
Sri Bharat Ji Agrawal, learned counsel for the appellant refuting the above submission contended that the hospital in question is situate at Bareilly in the State of U.P.. It has imported the machines (medical equipments) on which the exemption of the custom duty was claimed for. He submits that the order impugned alleges non compliance of the terms and conditions of exemption to the effect that the hospital has not treated certain percentage of out door patients free of cost. He submits that part of cause of action having arisen within territorial jurisdiction of this Court as the machine (medical equipment) has been imported for the hospital at Bareilly and the patients have been treated in the hospital at Bareilly and all allegations on the basis of which the order has been passed are with regard to treatment of the patient at Bareilly, the part of cause of action has arisen within territorial jurisdiction of this Court. Learned counsel for the parties placed reliance upon a decision of the Apex Court in Ambica Industries v. Commissioner of Central Excise, (2007) 6 SCC 769.
We have considered the objection raised by Sri R.C. Shukla, learned counsel for the department. From the fact which has been brought on record, it is clear that the basis of the order is that the appellant who is hospital situate at Bareilly within territorial jurisdiction of this Court has not treated the particular percentage of out door patients free of cost as per conditions of the exemption notification, the part of cause of action thus, clearly arose within the territorial jurisdiction of this Court and the submission made by Sri R.C. Shukla that the writ petition ought to have been filed at the High Court of Bombay prima facie does not appear to be correct. The judgment of the Apex Court in Ambica Industries (supra) relied upon by the learned counsel for the parties in para-41, it has been clearly observed that if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. Para-41 of the aforesaid judgment is reproduced below:
"Keeping in view the expression "cause of action" used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered."
We thus, overrule the objection raised by Sri R.C. Shukla, learned counsel for the department.
Sri Bharat Ji Agrawal, learned counsel for the appellant submits that the total percentage as has been noted by the adjudicating authority, at page-125 of the paper-book, is more than 40%. He submits that the present is the case where hospital has produced relevant records to prove that the hospital has complied with the conditions of the exemption notification. He submits that the Tribunal has committed an error in refusing to waive of the pre-deposit of the duty rather it has only stayed 50% of the pre-deposit. Learned counsel for the appellant submits that the appellant is a hospital and asking the hospital to deposit 50% of the duty, shall effect adversely the financial condition of the hospital and running of the hospital. He submits that the appellant is ready to deposit 50% of the amount in cash and bank guarantee for rest of the amount as directed by the Tribunal.
Considered the submissions of the learned counsel for the appellant and perused the record.
We are of the view that the looking to the facts of the case and submission made, the end of justice be served indirectly the appellant to deposit 50% of the amount (required to be deposited under the order of the Tribunal) in cash and bank guarantee for rest of the amount within a period of 15 days from today. Subject to fulfillment of the conditions as stated above, the Tribunal shall proceed to decide the appeal on merits.
The appeal is admitted on the following substantial questions of law:
"1. Whether the Tribunal while exercising power conferred upon it in terms of proviso to Section 129E of the Customs Act decide a waiver application without considering the prima facie case and financial hardship pleaded by the appellant?
2. Whether the tribunal while considering the application on merits is bound to consider the judgments rendered by High Courts duly cited before the tribunal?
3. Whether the tribunal can direct payment of huge amounts as pre deposit which have the effect of wiping out the entire worth of the company and would lead to its closure?
4. Whether the Tribunal while exercising the jurisdiction conferred by the proviso to Section 129E of the Customs Act can lay down arbitrary condition which amount to denying the right of appeal conferred by the Statute?
The name of Sri R.C. Shukla, Advocate may be shown in the cause list as counsel for the respondent when ever the case is listed next.
(Prakash Krishna,J) (Ashok Bhushan,J)
Order Date :- 7.5.2012
MK/
