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TMI Blog2011 (8) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular disease and it cannot be used for the common purpose of sugar, electrolyte or fluid replenishment and thus defeating the intention of legislature. Exemption denied. - CEA No. 69 of 2011 (O&M) - - - Dated:- 17-8-2011 - MR. JUSTICE M.M. KUMAR, MR. JUSTICE GURDEV SINGH, JJ. Mr. Ankit Goel, Advocate, for the appellant. Mr. PS Ghuman, Central Government Standing Counsel. GURDEV SINGH, J. 1. The instant appeal under Section 35-G of the Central Excise Act, 1944 (for brevity 'the Act') has been filed against the order dated 29.10.2010 (Annexure A-15) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity 'the Tribunal'), which was certified by the Registry of that Tribunal on 12.11.2010. 2. The appellant is engaged in production and manufacture of various pharmaceutical products, including intravenous injectible medicaments. As per item No. 47A of Notification No. 6/2000-Central Excise, dated 1.3.2000, as amended by No. 21/2000 dated 2.3.2000, No. 22/2000 dated 6.3.2000, No. 29/2000, dated 31.3.2000, No. 36/2000 dated 4.5.2000, No. 38/2000 dated 12.5.2000, No. 50/2000-CE, dated 29.9.2000 and Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal, directing it to ascertain the findings on the second issue i.e. Schedule 'H' of the 1945 Act and its effect. Pursuant to that remand order, the Tribunal at Mumbai re-considered the matter in Parentral Drugs (I) Limited versus The Commissioner of Customs and Central Excise, Indore (Annexure A-9) and vide its order dated 18.12.2009, remitted the matter to the adjudicating authority for re-consideration, after affording the parties sufficient opportunities to adduce adequate material to ascertain the fact of intravenous products being Schedule 'H' drug for the purpose of exemption, in terms of notification dated 1.3.2001. After the remand, it filed detailed submissions and material to support its stand that mere presence of medicaments in the intravenous fluids manufactured by it and used for sugar, electrolyte or fluid replenishment cannot disentitle exemption from duty in terms of notification dated 1.3.2001. The Department took the stand that the goods so manufactured contained medicaments and were lebelled schedule 'H' and, as such, fell outside the purview of that notification. The Tribunal, vide order dated 29.10.2010 (Annexure A-15) accepted the contentions of the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble the Supreme Court. (iv) The Tribunal failed to take into account the judgment dated 18.12.2009 rendered by the co-ordinate Bench at Mumbai in the matter of one of the assessees, who was also party in the appeal before Hon'ble the Supreme Court. The Mumbai Bench allowed the similar evidence and came to the conclusion that the matter requires further detailed examination by the adjudicating authority and accordingly, remanded the case to that authority. (v) The Hon'ble Supreme Court, while remanding the case, had directed the Tribunal to give its finding as to the effect of budget explanatory note. The Tribunal refused to take into consideration the budget explanatory note and recorded the finding only on the common parlance theory, which is against the spirit of the order of Hon'ble the Supreme Court. The Tribunal ought to have considered the budget explanatory note as a guide for the interpretation of the exemption notification, rather relying upon the provisions of Drugs and Customs Act and the Rules framed thereunder. 4. We have heard learned counsel for both the sides. 5. While challenging the order of the Tribunal, learned counsel for the appellant made three- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice(s) to deny the benefit of exemption claimed by the respondents under Notification No.3/2001. Unfortunately, despite detailed analysis of the notification in question by the Commissioner, the Tribunal has not examined this aspect and, therefore, the matter needs to be remitted to the Tribunal to give its finding as to what is the effect of the 2001-2002 Budget which restricts the definition of 'IV Fluids' in terms of the above three qualifications. There is one more aspect which the Tribunal is required to consider. In the labels of the respondent-Company, there is a warning stating that IV fluid manufactured by the assessee is Schedule-H Drug. What is argued on behalf of the assessee(s) is that because of addition to the IV Fluid of one of the abovementioned six items, the product manufactured is required to be sold as a Schedule-H drug. On the other hand, the Department has placed reliance on the Drugs and Cosmetics Rules, 1945 read with Schedule-H to indicate that when IV Fluid has dominant therapeutic value, it will not come within the exemption because it has to be treated as a Schedule-H drug. We do wish to express any opinion on this point. Suffice it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar from that order that those applications were not allowed. However, the Tribunal recorded reasons while disposing of those applications. At the time of arguments, learned counsel for the appellant failed to disclose as to what type of evidence it wanted to produce before the Tribunal and what prejudice has been caused to it by the non-production thereof. It was categorically recorded by the Tribunal in para No. 30 of its order that the material sought to be produced by way of additional evidence do not relate to the issue under consideration. The Tribunal felt that it can decide point No. 2 without any further evidence, on the basis of the evidence already produced before it. We do not find any infirmity or illegality in the reasoning so recorded by the Tribunal, while disallowing the prayer of the appellant to lead additional evidence. 9. Both the above said points were decided by the Tribunal against the appellant on the basis of sound reasoning and after taking into consideration the budget proposal for the year 2001-2002 and after duly interpreting the notification in question and the relevant provisions of 1945 Act. The exemption from excise duty was in respect of intrav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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