9911796707
TMI Blog2010 (7) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the assessable value as reflected in the commercial invoices raisesd - no justification in confirmation of demand of duty - E/3266 and 3402-3403/2005 - A/886-888/2010-WZB/AHD - Dated:- 7-7-2010 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : S/Shri V.S. Nankani and H. Modh, Advocates, for the Appellant. Shri R. Nagar, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. - All the three appeals are being disposed off by a common order as they arise out of the same impugned order passed by Commissioner confirming demand of duty of Rs. 86,84,707/- against M/s. Lacure Pharmaceutical Ltd. along with imposition of penalty of identical amount under Section 11AC of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Lacure, since at times they have excess orders to manufacture the goods, which they were unable to make, the facilities of M/s. Vapi Care Pharma Pvt. Ltd. were being utilized by them under the loan licence arrangement. At the time of clearance of the goods to M/s. Vapi Care Pharma Pvt. Ltd., they were raising central excise invoices and were paying the appropriate duty on the same after availing the benefit of Notification No. 8/97 dated 1-3-97 or 2/95 dated 2-1-95 depending upon whether the raw materials used for manufacturing the said goods were indigenously procured or imported. Such value on which duty was being discharged by them was arrived at on the basis of the input cost + conversion cost. M/s. Vapi Care Pharma Pvt. Ltd. further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 997-2002, after receiving permission from Development Commissioner. He fairly agrees that the goods cleared by them to M/s. Vapi Care Pharma Pvt. Ltd. for the purpose of packing were ultimately meant for final delivery to M/s. Cadila Health Care. He clarifies that M/s. Vapi Care Pharma Pvt. Ltd. has cleared the goods to M/s. Cadila Pharmaceuticals by paying duty on the value shown in the commercial invoices raised by M/s. Lacure for sale of goods to M/s. Cadila Pharmaceuticals. He submits that the Revenue's stand that such duty on the transaction value of the ultimate sale of the goods should have been paid by M/s. Lacure, as held by the Commissioner, is not in accordance with the provisions of law in as much as the appellant M/s. Lacure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a Central excise invoice after paying concessional duties and there being no dispute about the assessable value adopted for such payment of excise duty, the Revenue cannot demand further duty from M/s. Lacure on the ground that the should have paid the duty on the commercial invoice raised by them against M/s. Cadila Pharmaceuticals. He submits that in any case M/s. Vapi Care Pharma Pvt. Ltd. has cleared the goods on payment of duty by utilizing the credit as also by paying out of PLA by adopting the assessable value on the basis of commercial invoices raised for M/s. Cadila Pharmaceuticals. 5. Learned DR appearing for the Revenue draws our attention to the reasoning adopted by Commissioner and submits that the goods were in fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance of goods by M/s. Lacure to M/s. Vapi Care Pharma Pvt. Ltd. was in accordance with the provisions of law and under the permission of the Development Commissioner. The adoption of assessable value was also in accordance with law. The adjudicating authority has held that M/s. Lacure has adopted a novel method for evasion of duty by first sending the goods to M/s. Vapi Care Pharma Pvt. Ltd. under the cover of central excise invoices, showing the less assessable value than what has been ultimately received by them as commercial consideration. However it stands nowhere discussed by the adjudicating authority that such clearance of medicaments and packing material to M/s. Vapi Care Pharma Pvt. Ltd. under the scheme of loan licence was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices. We find that non-discloser of the above fact will not attribute any suppression to M/s. Lacure in as much as the goods were being cleared from their factory to M/s. Vapi Care Pharma Pvt. Ltd. and not to M/s. Cadila Pharmaceuticals. Subsequently they raised invoices against M/s. Cadila Pharmaceuticals as a trader for the goods manufactured by M/s. Vapi Care Pharma Pvt. Ltd. As such non-discloser of the above fact, when the entire operation was being done within the knowledge and under the permissions of the authorities, will not invite invocation of longer period. 8. In view of the above discussion, we hold that confirmation of demand of duty against M/s. Lacure and imposition of penalties upon the appellants is not sustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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