2002 (11) TMI 647 - AT - Central Excise

Summary

Issues:
1. Entitlement to exemption under Notification 8/96 for roxithromycin clearance.
2. Denial of exemption by the Commissioner.
3. Merits of the case for exemption.
4. Applicability of the earlier Tribunal decision.
5. Challenge to the extended period of limitation.
6. Allegation of suppression of facts by the appellant.
7. Applicability of Notification 8/96.
8. Suppression of material facts by the appellant.
9. Acceptance of the contention regarding suppression.
10. Bar on the notice due to limitation.

Analysis:

1. The primary issue in this appeal is the entitlement of the appellant to the exemption under Notification 8/96 concerning the clearance of roxithromycin during a specific period. The duty was alleged to be short paid due to the goods not being classified as bulk drugs exempted under the notification.

2. The Commissioner denied the exemption on the grounds that the bulk drug in question did not meet the specified pharmacopoeial standards, leading to the denial of the exemption claimed by the appellant.

3. The Tribunal found that on merits, the appellant did not have a case for exemption, citing a previous decision where the definition of "bulk drugs" across notifications was considered identical, thus negating the appellant's claim for exemption.

4. The appellant challenged the applicability of the earlier decision to the current facts but did not contest the ratio of the previous decision. The issue of the extended period of limitation was raised by the appellant's counsel, arguing against its applicability.

5. The extended period of limitation was invoked based on the alleged suppression of the fact that roxithromycin did not conform to pharmacopoeial standards. The appellant's classification list indicated exemption claims under Notification 8/95 for certain products but lacked a specific claim under Notification 8/96, leading to a contention of suppression by the department.

6. The departmental representative argued that the exemption applicable during the relevant period was under Notification 8/96, highlighting a supposed suppression of material facts by the appellant due to the absence of a specific claim under the relevant notification.

7. The Tribunal, however, did not accept the department's contention, noting that even though the appellant did not file a self-contained classification list for 1996-97, the RT12 return and attached invoices would have indicated the clearance of roxithromycin under the relevant exemption notification.

8. Ultimately, the Tribunal found that there was no sufficient basis for the invocation of the extended period of limitation due to the lack of a clear claim under Notification 8/96, leading to the conclusion that the notice was barred by limitation. Consequently, the appeal was allowed, and the impugned order was set aside.