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TMI Blog1997 (12) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... bulk drug . Notice also alleged that the appellant misdeclared potassium iodate in the classification list as bulk drug . Differential duty was sought to be recovered on the clearances by disallowing the exemption. After considering the cause shown and hearing the appellant, the Collector confirmed the demand for duty. Hence this appeal. 2. Notification 8/95 grants exemption to bulk drugs including to those other than specified in it. Potassium iodate is not specified here. The explanation to Notification defines bulk drugs and formulation in the following words : Bulk drug means any pharmaceutical, chemical, biological or plant product including its salts, esters, stereo-isomers and derivatives, conforming to pharmacopoeial or other standards specified in the Second Schedule to the Drugs and Cosmetics Act, 1940 (23 of 1940), and which is used as such or as an ingredient in any formulation : Formulation means medicaments processed out of or containing one or more bulk drugs, with or without the use of any pharmaceutical aids (such as diluent, disintegrating agent, moistening agent, lubricant, buffering agent, stabiliser or preserver) which are therapeutically inert a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been used as a drug. Since this has not been done, the benefit of the exemption has been rightly denied. He contends that the term used occurring in the notification should be interpreted to mean already used and not (as is contended by the appellant) capable of being used . The product has not been shown to have been used as a drug either by itself or as an ingredient in any formulation . The fact that it has manufactured under a drug licence does not render it a bulk drug, in view of the different terminologies contained in the Drugs and Cosmetics Act and in the Notification. For all practical purposes, iodised salt, for the manufacture of which potassium iodate is used, is not a `formulation but food item. He seeks to distinguish the various decisions relied upon by the advocate for the appellant. 5. The question for determination thus formulates itself as follows : To obtain the benefit of Notification No. 8 of 1995, was it necessary for the manufacture of the appellant to show it to have been used as a drug, or is it sufficient to show that the product is capable of being used as a `bulk drug either as such or in a `formulation . A subsidiary question that m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which may be capable of use by itself or as an ingredient in any formulation. Drug is defined in clause (d) of para 2 to include `bulk drugs and `formulations . Clause (f) then defines `formulation to mean any medicine processed out of or containing one or more bulk drugs or drug. Thus formulation is a medicine which may comprise even of one bulk drug by itself or more than one bulk drug. The definition of `formulation is thus very wide and includes even one bulk drug where that one bulk drug by itself is treated as a medicine... The Departmental Representative seeks to contend that this judgment would not apply to the notification. We note however, that the definition of the term `bulk drug; occurring in the various Central Excise notifications has been identical with the definition of the term occurring in the DPCO as it existed from time to time. Thus Notifications 31/88 and 6/94 incorporated to meaning given in DPCO, 1987 and Notification 8 of 1995, the meaning given in DPCO, 1995. The contention of the Departmental Representative that the observations of the Supreme Court were made in a different context therefore would not apply to the definition in the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in Citric India s appeal. The Court did not accept this contention for the reason that the Supreme Court had found that acetic andydride was used in the manufacture of drugs and that therefore, the question as to whether end-use has to be considered before exemption can be granted did not come up for consideration before the Supreme Court. The Departmental Representative relied upon the decision of a single judge of the Karnataka High Court in Mysore Acetate and Chemical Co. v. Asstt. Collector - 1984 (17) E.L.T. 319 in order to say that since the assessee is located in Gujarat, Bombay High Court judgment is not binding upon it and that the Tribunal can choose between either of these two decisions. This judgment in fact does not lay down that an end-use certificate has to be produced before exemption could be availed of. The assessee had challenged before the Court demand for duty of acetic andydride manufactured by it on the ground that it was a chemical and not a drug, pharmaceutical or similar product exempted by Notification No. 62/78-C.E. The Court found that although it was a chemical, the product had been supplied as a drug intermediate and held that therefore it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -use certificate is not necessary for potassium iodate in terms of the judgment of Bombay High Court and the decisions of this Tribunal. It is therefore not necessary to answer the subsidiary question. 15. Appeal allowed. Impugned order set aside. 16. [Assent per : G.N. Srinivasan, Member (J)]. - I entirely agree with the order proposed by my learned brother. 17. Normally I would not write any assertive or concurring order. But in view of the fact that Bombay High Court had distinguished the case of Andhra Sugar decided by SC 1988 (38) E.L.T. 564 I am citing this concurring judgment. 18. In Citric India Ltd s case the Division Bench of the Bombay High Court has taken note of the decision of the Supreme Court referred to above. The question involved in this case as well as in the case decided by the Bombay High Court referred to above are similar. This Tribunal is working under the jurisdiction of the High Court of Bombay. In paragraph 8 of the judgment, the Bombay High Court has elucidated as to how Supreme Court judgment is not applicable in that case. Hence following the Bombay High Court judgment and for the reasons recorded by my brother, I agree that the appeal has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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