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hospital fell within Category 1 of the table annexed to the Notification quoted hereinabove.

This issue arose because the Director General of Health Services (DGHS) while granting Customs Duty Exemption Certificate (CDEC) wrongly categorized the appellant - hospital in Category 2 instead of Category 1. It is this controversy which ultimately came before the High Court in Customs Appeal Nos. 52, 53 and 55 of 2008.

In this case, vide the impugned Order, the Division Bench of the High Court held that the case is covered by the judgment of the Supreme Court in the case of Jaslok Hospital & Research Centre Vs. Union of India reported in 2007 (218) ELT 170 (SC).

Following the decision of the Supreme Court in the case of Jaslok Hospsital (supra), the High Court dismissed the Customs Appeals filed by the appellant herein.

The narrow issue which, therefore, arises for determination in this case: whether the case of the appellant herein stands covered by the judgment in the case of Jaslok Hospital (supra). In that case Jaslok Hospital was categorized under Category 2. That categorization was cancelled. There was no challenge to the cancellation of the categorization and without such a challenge an application was made for change in category. Under those circumstances, this Court observed that in order to enable a hospital to claim change in the categorization, the hospital must be in some category on the date on which application is made for change in categorization. It is important to note that in the case of Jaslok Hospital (supra), the said hospital applied for re-categorization after three years of the cancellation/withdrawal of CDEC.

On the other hand, in the present case, we find that the appellant had applied for categorization as Category 1 hospital. On account of the alleged mistake on the part of DGHS, while granting CDEC categorized the appellant herein as category 2 instead of category 1. Further, DGHS cancelled CDEC ex-parte without giving any notice or hearing to the appellant herein stating that the conditions of Category 2 stood violated. This cancellation of CDEC has been quashed by the High Court vide its order dated 26.11.2008.

It appears that the impugned order was passed on 1.10.2008, however, vide Order dated 26.11.2008 in Writ Petition No. 651 of 2001, the order of cancellation of CDEC, which was an ex-parte order, has been set aside. In the circumstances, we hold that this case is not covered by the judgment in the case of Jaslok Hospital (supra). Therefore, on the date of the application for change in categorization the issue of categorization was a live issue.

On this ground alone we set aside the impugned judgment dated October 1, 2008 in Customs Appeal Nos. 52, 53 and 55 of 2008 and remit the cases to the High Court for fresh consideration in accordance with law.