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94 EXCISE LAW TIMES [ Vol. 372
14. The only question that remains is whether appellant was derelict in
extending free treatment as prescribed or was charging unreasonable rates. The
rates for paying patients are not prescribed in the exemption notification. As to
that which is reasonable, there is no finding in the impugned order, nor are these
decisions that are binding precedent. No effort has been made by the adjudicat-
ing authority towards ascertainment of compliance of this condition and the
rates charged by the appellant were not only not subjected to the test of reasona-
bleness but, more importantly, are entirely unknown. There is no onus on the
appellant to negate that which is not alleged in the notice and failure to establish
reasonableness of rates cannot be held against the appellant.
15. The appellant has produced records of radiotherapy treatment pro-
vided between 1991 and 1998. These have not been controverted with any coun-
ter-evidence and a casual handling of this record with a vague dismissal on
grounds of non-segregation of indoor or outdoor patients in this record, without
any substantive finding, is not a diligent discharge of power of adjudication. We
must confess to inadequacy of knowledge on medical matters but, even to us, it
is apparent that discarding of record must not be based on supposition but on
hard facts. The data of patients furnished indicates that 40% of the patients have
been accorded free treatment and, in the absence of contrary evidence, we con-
clude that there is no ground to hold that appellant had failed to fulfil this condi-
tion.
16. The condition of free treatment to indoor patients with income be-
low the prescribed threshold stands on two limbs and the conjunction ‘and’
makes it indubitably clear that these have be to viewed for compliance in terms
of complementing each other. Accordingly, to conform to the condition, not less
than a tenth of the beds must be earmarked for patients in this category and
whose treatment must be effected without any charge. That a tenth of the beds
had been so earmarked is clear from the data furnished to the adjudicating au-
thority and has not been controverted. The charging of patients who occupied
beds in excess of that so earmarked is not, therefore, a transgression from the
stipulations prescribed for continual conformity. The finding of the adjudicating
authority that the compliance is in conformity only when the beds so earmarked
are relatable to treatment with the imported equipment is clearly executive over-
reach in the absence of any such delineation in the conditions appended to the
privilege of exemption. The pre-requisites laid down by the Hon’ble Supreme
Court in re Mediwell Hospital and in Health Care Pvt. Ltd. v. Union of India [1997
(89) E.L.T. 425 (S.C.)] are not set forth in the impugned order and the detriment
determined, thereof, fails in consequence.
17. We may also mention in passing that the decision of the Hon’ble
High Court of Bombay in Shah Diagnostic Institute Pvt. Ltd. v. Union of India [2008
(222) E.L.T. 12 (Bom)] may not find relevance here. In the impugned proceedings,
the notice was issued in 1999 long after the rescinding of the exemption notifica-
tion, with its attendant conditions, in 1994 and including alleged contraventions
after the exempting notification ceased to exist. The decision in re Shah Diagnos-
tics was rendered in a dispute pertaining to the period when the notifications
subsisted but decided upon after the rescinding of the notification. The relevance
of Section 159A arises from these facts. The communication from Director Gen-
eral of Health Services, being a post-importation withdrawal of a certificate rele-
vant to importation and devoid of consequential impact, cannot be relied upon,
in the absence of any scrutiny of relevant information, as a substitute for a find-
ing on facts of post-importation compliance.

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