2006 (8) TMI 191 - SC - Central Excise

Exemption Notification No. 11/97-Cus., dated 1st March, 1997 - Import of Life saving drug - Polymyxin B-sulphate - Held that - The Tribunal applying clause (A) of Entry 43 instead of clause (B) thereof for the first time granted the benefit to the assessee on the assumption that the Rules do not apply to the goods imported. The Tribunal has not elaborated or discussed the same. The order passed by the Tribunal is rather cryptic and non-speaking. The impugned order is set aside and the case is remitted back to the Tribunal for a fresh decision in accordance with law including the question as to whether the assessee could be allowed to change its claim of exemption from clause (B) to (A) of Entry 43 of the Rules for the first time before it - Decided in favour of Revenue.

Summary

Issues: Appeal against grant of exemption to assessee under a specific notification.

Analysis:
The appeal under Section 35-L of the Central Excise Act, 1944 was filed by the revenue against the Final Order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, West Zonal Bench at Mumbai. The assessee had imported life-saving drugs and sought exemption under a specific notification. The Exemption Notification included provisions for the use of bulk drugs in the manufacture of life-saving drugs or medicines. The assessee applied for exemption under clause (B) of Entry 43 but faced rejections from the authority-in-original and the Commissioner. The Tribunal, however, granted the benefit to the assessee by applying clause (A) of Entry 43 instead of clause (B), without discussing the applicability of the Rules governing the exemption. The Tribunal's order was challenged by the revenue, leading to the present appeal.

The assessee contended that the imported drug was entitled to exemption under clause (A) of Serial No. 43A of the Notification as a life-saving drug. The Tribunal's decision to grant exemption was based on the assumption that the Rules did not apply to the imported goods. However, the Tribunal did not provide a detailed explanation for this decision. The assessee argued that the Rules were not applicable, citing specific sub-rules, but the Tribunal did not address this argument in its order. The Supreme Court found the Tribunal's order to be cryptic and non-speaking, setting it aside and remitting the case back to the Tribunal for a fresh decision in accordance with the law. The Court directed the parties to appear before the Tribunal for further proceedings and ordered the record to be transmitted to the Tribunal promptly for further action.