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TMI Blog2010 (9) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... were in fact manufacturing I.V. Cannulas - However, considering the facts and circumstances of the case, we direct the appellants to deposit sum of Rs. 15,00,000/- (Rupees Fifteen Lakhs) within ten weeks while waiving the balance amount demanded under the impugned order - E/536-537/2010 - 714-715/2010-EX(PB) - Dated:- 20-9-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri G.S. Sarkar and Saurav Yadav, Advocates, for the Appellant. Shri Amrish Jain, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. - Heard learned advocate for the appellants and departmental representative for the respondent. This application has been filed in the appeal challenging the order passed by the Commissioner (Appeals), Kanpur, whereby the appeal filed by the appellants against the order of the Adjudicating Authority has been dismissed. The impugned order was passed on 27th November 2009. The Adjudicating Authority by its order dated 30th June 2009 had confirmed the demand of Rs. 20,85,690/- as central excise duty and sum of Rs. 41,719/- as education cess against the appellants while directing payment of interest ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Being so, the fact that the appellants had been manufacturing I.V. Cannulas was within the knowledge of the department and, therefore, there was no case for invocation of extended period of limitation. Without prejudice to this argument, he submitted that even assuming that the Circular could be made applicable, the same being oppressive in nature to the assessee, it could be made effective prospectively and not retrospectively. The circular was issued on 6th February 2007, whereas the period in question relates to October 2004 to 5th February 2007. In that regard, reliance is placed in the decision of the Hon ble Supreme Court in the matter of Suchitra Components Ltd. v. CCE, Guntur reported in 2007 (208) E.L.T. 321 (S.C.) = 2008 (11) S.T.R. 430 (S.C.) and CCE, Bangalore v. Mysore Electricals Industries Ltd. reported in 2006 (204) E.L.T. 517 (S.C.). 5. The departmental representative, on the other hand, drawing our attention to the order passed by the Tribunal in the case of Becton Dickinson India Pvt. Ltd. v. CCE, Delhi-III reported in 2009 (242) E.L.T. 584 (Tri. - Del.) submitted that the Tribunal has already distinguished the decision in Saberwal Surgical (P) Ltd. case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rteries for purpose of blood sampling, blood transfusion, single and multiple drug infusion, arterial pressure monitoring, etc. (ii) Aorta and venae cavae are not similar to peripheral veins and arteries as there are various anatomical and physiological differentials which distinguish between (a) aorta and venae cava and (b) peripheral veins and arteries, (iii) In exigencies, where specific catheter is not available, IV cannulas are rarely used in abdominal/pleural cavities but this does not justify their use and they are not recommended by standard medical text-books for use as cannula for intra-corporal spaces. 4. Therefore, it is clarified that IV cannula, which is primarily used in the peripheral veins and arteries, is not covered by the description Disposable and non-disposable cannula for aorta, vena cavae and similar veins and blood vessels and cannula for intra-corporal spaces and exemption under notification No. 6/2006-C.E., dated 1-3-2006 [earlier notification No. 6/2002-C.E., dated 1-3-2002] would not be available to such IV cannulas. 9. In Mysore Electricals, the Apex court was dealing with the issue as to whether Single Panel Circuit Breaker are class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been done with further clarification regarding the properties and the use of such products which have been elaborately described in the annexure to the circular. Being so, merely by referring to the decisions of the Apex Court in Suchitra Components Ltd. and Mysore Electricals Industries Ltd., it cannot be jumped to the conclusion that the circular dated 6th February 2007 seeks to introduce something new or that it is in an oppressive nature against the assessee. Mere clarification about availability of exemption or not, in our considered opinion, cannot amount to be of oppressive nature against the assessee. The exemption notifications are always in the nature of benefit granted to the assessee. They are not as a matter of right available to the assessee, unless there is specific announcement granting exemption by the competent authority. Being so, clarification about availability or non-availability of exemption benefit under a notification cannot be said to be oppressive in nature even if it is clarified that the exemption would not be available. Being so, the decision of the Apex Court in Suchitra Components Ltd. and Mysore Electricals Industries Ltd. can be of no help in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be understood with reference to the facts of the said case, the question which arose in the said case and the ruling given on the points canvassed therein. A decision cannot be read like a statute. It is clear that Saberwal Surgical case did not deal with interpretation to entry 34 and decision was essentially based on certificate by the expert in relation to product which was the subject matter of the decision. 13. It was vehemently argued on behalf of the appellants that the records do not justify invocation of the extended period of limitation. It was submitted that all the required information was furnished to the department from time to time and there was nothing suppressed or misstated by the appellants. Attention was sought to be drawn to para 7 of the show cause notice while contending that even the department had understood that there was no misstatement made by the appellants in the matter in hand. The contention in that regard was disputed on behalf of the department while contending that the narration in para 7 of the show cause notice relates to the disclosure made subsequent to the query made under letter dated 24th September 2007. 14. The Adjudicating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question i.e. I.V. Cannulas only after when they had already started payment of duty on the said goods from 6-2-2007. It appears that the party had filed the said intimation in order to cover up the aforesaid discrepancy. In view of the aforesaid suppression, the department could not know the factual position regarding manufacture and clearances of I.V. Cannulas during the relevant period. Further, the party had wilfully mis-stated that the said goods i.e. I.V. Cannula falls within the description - Disposable and non-disposable cannula for aorta, vena cavae and similar veins and blood vessels and cannula for intra-corporal spaces and thereby, wrongly availed the exemption on the said goods with intent to evade payment of Central Excise duty due thereon. Therefore, in the instant case, the ingredients of wilful misstatement and suppression of facts with intent to evade payment of duty, are available and accordingly, the said amount of Central Excise duty Edu. Cess is demandable from the party, under proviso to Section 11A (1) of Central Excise Act, 1944 invoking the extended period. 16. Plain reading of the said para would disclose that the same relates to the details disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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