9911796707
TMI Blog1997 (12) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... ugs. The proviso to the notification is reproduced below : Provided that the manufacturer furnishes to the proper officer, a certificate from the Drugs Controller to the Government of India, within such period as the said officer may allow, to the effect that the drugs or chemicals which are claimed for exemption under notification are the bulk drugs within the meaning of the bulk drugs given in the Explanation to this notification, and are nor- mally used for the diagnosis, treatment, mitigation or prevention of diseases in human being or animals, and used as such or as an ingredient in any formu- lation. In the classification filed on 16 July, 1986 the appellant did not claim the benefit of this notification. It instead elected to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount deposited was not treated as duty, the same to be (treated as a) kind of deposit. Therefore he says Rule 56C would apply since the finished goods had not discharged duty being exempted and therefore the assessee could not have taken credit. Hence this appeal. 3. We do not consider it necessary to examine each of the ground raised before us because we are of the view that the appeal could be disposed of on one point. Notification 234/86 exempted bulk drugs falling under Chapter 28 or 29 of the Tariff, from the whole of the duty paid, subject to the condition contained in the proviso. The notification is, therefore, not an unconditional exemption. It does not exempt from duty, simpliciter the goods. It exempts bulk drugs subject to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position may be different in the case of an unconditional notification. Where such a notification is issued, there is no question of the assessee claiming that he will not be able to comply with the provisions of the notification. The appellant cited before us a decision of the Tribunal in Everest Convertors v. C.C.E., Calcutta-I - 1995 (80) E.L.T. 91 in which it has been held that even when the exemption is unconditional, the assessee cannot be denied the option to electing to pay duty. The Tribunal rested its conclusion on two arguments; the first was that the power exempts goods from duty is a financial power and not a power pure and simple to fix the rates of duty." Therefore, it could not be considered as a compulsory character, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike in a case of unconditional notification where the notification would take effect as soon as it is issued. It is only after the conditions specified are fulfilled that the manufacturer would be able to claim, or the Assistant Commissioner be able to grant the benefit of the notification. This is so recognised by the practice followed in cases where conditional exemptions as claimed. Assessments are not finalised in such case till the assessee is able to show that conditions prescribed has been fulfilled. The exemption available under Notification 234/86 would have had effect in the case of goods manufactured by the appellant if it was able to produce the required certificate. Even after claiming the benefit of the notification and in spi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted the Division Bench of the Andhra Pradesh High Court which decided Ganesh Metal Processing Industries v. U.O.I. - 1996 (81) E.L.T. 11 do not support the Department s case. The learned Judge posed the issue in para 20 Construing rule 57C the only question to be asked and answered whether the final product is exempted from the whole of the duty or it is chargeable to nil rate of duty. We have already answered this question in the negative. 9. It was therefore to be held that the products in question were not exempted from duty as that is cited in Rule 57C. The provisions of that rule therefore do not apply so as to debar the assessee in taking credit of the duty paid on the inputs. The appellants would also succeed on limitation for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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