1999 (3) TMI 230 - AT - Central Excise

Summary

Issues:
- Appeal against denial of exemption under Notification 122/86 for gentamycine sulphate.
- Classification of gentamycine and gentamycine sulphate.
- Interpretation of Notification 455/86 as clarificatory.
- Consideration of technical and quality aspects of the products.
- Lack of evidence in show cause notice.
- Period not specified in show cause notice.

Analysis:
1. The appeal was filed against the denial of exemption under Notification 122/86 for gentamycine sulphate, a product used by the appellant in manufacturing medicines. The issue arose due to the difference in classification between gentamycine and gentamycine sulphate, with the former being exempted under the notification. The show cause notice did not specify a period for the alleged duty difference of Rs. 2,48,466, and the appellant denied the allegations, arguing that gentamycine and gentamycine sulphate are the same from a technical and quality perspective.

2. The appellant contended that Notification 455/86 clarified that gentamycine sulphate should be read as gentamycine only, supporting their claim for exemption under Notification 122/86. The Tribunal's judgment in a similar case emphasized the clarificatory nature of Notification 455/86, indicating that the intention was to grant exemption from the inception of Notification 122/86. The Department, however, supported the decisions of the lower authorities.

3. The central issue revolved around whether gentamycine sulphate is entitled to exemption under Notification 122/86, which specifically exempts patent or proprietary medicaments containing certain ingredients, including gentamycine. The appellant argued that gentamycine sulphate should be considered the same as gentamycine, citing technical and qualitative similarities and the clarifications provided in Notification 455/86. The Ministry's letter further supported the retrospective and clarificatory nature of the latter notification.

4. Ultimately, the Tribunal accepted the appellant's plea, emphasizing the technical equivalence of gentamycine and gentamycine sulphate and the clarificatory nature of Notification 455/86. The lack of evidence in the show cause notice regarding the differences between the two products, coupled with the absence of a specified period, led to the rejection of the lower authorities' orders. The appeal was allowed, granting consequential relief to the appellant in accordance with the law.