2012 (11) TMI 1008 - AT - Central Excise

Rectification of mistakes - Tribunal followed judgment in 2009 (3) TMI 55 - SUPREME COURT and decided the matter - Assessee contends that there is no order on all the three qualifications prescribed in Apex Court s order in the present order and specially the term fluid replenishment has not been explained resulting in miscarriage of the justice - Held that - The Tribunal after considering the parameters indicated in the Apex Court s Order held that IV Fluids manufactured by the appellant which contained ingredients having therapeutic value would not be eligible for exemption. In para 43 of the order the Tribunal also held that even the Drugs and Cosmetics Act clearly distinguishes the intravenous injections from intravenous fluid and while the Intravenous injections are treated as prescription drug covered by Schedule H the Intravenous Fluids are covered by Schedule C . Thus the final order passed by the Tribunal is strictly in terms of the parameters prescribed in the Apex Court s judgment. If the some of the Intravenous formulations manufactured by the appellant do not contain any antibiotic or any other component having therapeutic value and are only for replenishment of sugar electrolyte or the fluids the claim for exemption has to be made by the appellant before the jurisdictional excise authorities and as such there is no need for rectification of this order - Decided against assessee.

Summary

Issues:
Rectification of mistakes apparent from the record under Section 35C(2) of the Central Excise Act, 1944 regarding the denial of exemption for certain intravenous fluid formulations under Notification No. 3/2001 and No. 6/2002-C.E.

Analysis:
The appellant filed an application seeking rectification of mistakes in the Final Order passed by the Tribunal, which dismissed the appeals and upheld the denial of exemption for specific intravenous fluid formulations. The appellant argued that the products in question were meant for replenishment of sugar, electrolyte, or fluids and did not contain antibiotics or other therapeutic components. The appellant also raised concerns about the lack of consideration of certain qualifications and alternative pleas in the impugned order.

The Department Representative opposed the rectification plea, stating that there were no apparent mistakes in the order and that the application resembled an appeal reiterating issues already decided by the Tribunal. After hearing both sides, the Tribunal examined the submissions and records. The Final Order was passed following the Apex Court's directive for a de novo decision on the eligibility of intravenous fluids for duty exemption. The Tribunal considered the therapeutic value of the ingredients in the appellant's products and concluded that those with therapeutic value would not qualify for exemption.

The Tribunal highlighted the distinction between intravenous injections and intravenous fluids under the Drugs and Cosmetics Act, emphasizing that fluids were covered by Schedule 'C'. The Tribunal's decision aligned with the parameters set by the Apex Court's judgment. It was clarified that if certain intravenous formulations by the appellant were solely for replenishment purposes without therapeutic components, the appellant could claim exemption through the excise authorities without the need for rectification.

Regarding the appellant's plea for Cenvat credit and cum-duty benefit, the Tribunal explained that such matters were beyond the scope of the Apex Court's remand order and did not warrant directions in the Final Order. Consequently, the Tribunal found no apparent mistakes in the record and dismissed the application for rectification.