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TMI Blog2011 (3) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. CCE, Mumbai as reported in (2000 -TMI - 50277 - CEGAT, MUMBAI) as also by Hon ble Supreme Court decision in the case of CCE, Vadodara v. Narmada Chematur Pharmaceuticals Ltd. (2004 -TMI - 47174 - SUPREME COURT OF INDIA) - It stand clarified by these judgments that where the amount of credit wrongly availed is exactly equivalent to excise duty paid by not availing exemption, the consequence is Revenue neutral and demand for such wrong availment of credit cannot be sustained. - E/1644/08 - - - Dated:- 31-3-2011 - Mrs. Archana Wadhwa, Dr. P. Babu, JJ. Appellant/s Shri Vinay Kansara, Adv Respondent : Shri R.S. Sangia, SDR Per: Dr. P. Babu: M/s. Gufic Bioscience Ltd., Navsari are the manufacturers of P P Medic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 Mar-05 to Oct-05 15,36,572/- 30,733/- TOTAL 78,74,851/- 47,347/- The case was adjudicated by the Joint Commissioner who confirmed the demand and imposed penalties and ordered recovery of interest at the appropriate rate. The Commissioner (Appeals) uphold the Order-in-Original. 2. Against this order the appellants have filed the stay application praying for stay and pre-deposit of the amount of cenvat credit, penalty, interest and its recovery. 3. The basic issue to be decided in this case is that whether Lidocaine HCL/USP manufactured by them are exempted from payment of duty vide Notification Nos.6/2000-CE dated 01.03.2000 and No.3/2001-CE dated 01.03.01 as amended. As per Rule 6 of Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a bulk drug and the same can never be used as such is anesthetics directly. These products can only be used in the manufacture of anesthetics but cannot be used as anesthetics. They claimed that their product is a multi functional product. It was pointed out that they produced a sample of the finished product before the adjudicating authority and was specifically requested to get the sample of the product tested for the purpose of correct use of the same. In this context we observe that testing of the sample would have been a better course of action to decide on the use of the product and would have given credence either to support the claim of the appellants or the stand of the Revenue. 5. The appellants also produced the copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory force as if these are part of the Central Excises and Salt Act, 1944. Under Rule 57A of Central Excise Rules, 1944 read with Notification 177/86-C.E. issued thereunder, an assessee is entitled to benefit of modvat credit of duty paid on inputs for the purpose of utilising the credit towards payment of duty on the final product. Effect is that an assessee is entitled to or, acquires a right to, the benefit of full exemption notification as also to the benefit of movat credit of duty paid on inputs. These are mutually exclusive benefits as well inasmuch as, on the one hand, if his final product is not liable to pay duty at all, benefit of modvat credit of duty paid on inputs will not be available to him, and on the other, if he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot availing exemption, the consequence is Revenue neutral and demand for such wrong availment of credit cannot be sustained. 10. As could be seen, at Page 2 of this order, while giving the details of show cause notice, period and duty at Sr.No.8, there is a mention of a Show Cause Notice No.V(Ch.29)3-3/Dem/06/JC, dt.4.4.06, issued for the period March 2005 to October 205, demanding duty of Rs.15,36,572/- and Education Cess of Rs.30,733/-. The statement issued as per Annexure to the Show Cause Notice show the clearances, duty and value for the period March2005 to October 2005. In the case of product Lidocaine IP/BP/USP, the quantity cleared for home consumption is 1293.500 kgs with assessable value Rs.730,740.00 and for export under bond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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