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TMI Blog2015 (11) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... .2009 while remanding the matter to the Tribunal. Thus, it cannot be said that the appellant have prima facie case in their favour. The undue hardship is determined on the basis as to whether the assessee has prima facie case in his favour and if so, to what extent. The Revenue s interest have to be safeguarded keeping in view the factors which are in favour of the Revenue. At this stage, ld. Counsel for the Appellant pleaded that the appellant in their stay application have also pleaded financial hardships as on account of their inability to re-pay the bank debts, their case was referred to Corporate Debt Reconstructing Cell of the Banks which have formulated re-habilitation package. He also pleaded that this factor may also be taken into account while considering the stay application. However, irrespective of the plea of financial hardships, since the issue involved in this case stands decided by the Tribunal against the Appellant in its judgement in case of Ives Drugs (India) Ltd. , Venus Remedies Ltd. & Ors. (2010 (10) TMI 649 - CESTAT, NEW DELHI) and this judgement has been upheld by Hon’ble Punjab & Haryana High Courts, this is not a case for total unconditional waiver fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period from 1.2.2002 to 31.10.2002. 1.5. The above show cause notices were adjudicated by the Commissioner by which he under order-in-original dated 26.02.2014 denied the duty exemption for the entire period from 4.5.2000 to 31.10.2002 and confirmed the duty demands along with interest and imposed penalties. Appeals were filed against this order of the Commissioner before this Tribunal. The Tribunal vide Final Order No.733/2004-WZB/C-II dated 27.02.2004 decided the appeal filed by the appellant along with appeals of other drug manufacturers and allowed the same. 1.6. The Revenue challenged the Tribunals order dated 27.02.2004 before the Apex Court. The Apex court remanded the matter to the Tribunal for de novo adjudication with certain directions. In this regard, para 6, 7, 8, and 9 in the case of CCE, Indore Vs. Parenteral Drugs (I) Ltd. reported in 2009 (236) ElT 625 (SC) are reproduced below:- 6. The most important aspect to be noted is that in the 2001-2002 Budget, an explanation was inserted in Notification No. 36/2000, clarifying that only such IV fluids which were used for sugar, electrolyte or fluid replenishment, were exempt from duty and not other IV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Final Order No.27.02.2004 including the appeal filed by the present appellant were against the orders of the Commissioner, Central Excise, Indore. The Tribunal vide its Final order dated 29.10.2010 which was in respect of the appeals filed by M/s.Ives Drugs (India) Pvt. Ltd. and others, held that the assessees would be eligible for exemption for the period prior to 1.3.2001 when the entry in the notification no.6/2001-CE as amended by notification no.36/2000-CE dated 4.5.2000 covered Intravenous Fluids, but w.e.f. 1.3.2001 when the exemption was available only to Intravenous Fluids which are used for sugar, electrolyte or fluid replenishment, the products in question, would not be eligible for exemption. 1.8. In de novo adjudication proceedings in pursuance of the Supreme Courts order, the appeal filed by the appellant was, however, decided by Bombay Bench of the Tribunal. The Tribunal vide order no.A/335/2009-CE dated 16.12.2009 remanded the matter to the Commissioner for de novo adjudication. Pursuant to the remand order by the Supreme Court, the appellant had filed an affidavit on 7.11.2009 of one Dr. Vivek Sullere, a doctor by profession, along with application for adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e directions of the remand order of the Tribunal and on this very ground itself, the same would not be sustainable and the matter has to be set aside. He also pleaded that no copy of the opinion of Govindgram Saksaria Institute of Technology and Science, Indore, relied upon by the Department has been given to the assessee. Pointing out to the opinion of Dr.Vivek Sullere, he pleaded that the products, in question, even though containing anti-biotic or pharmaceutical products having therapeutic value, essentially remain Intravenous fluids and would be covered by the Entry Intravenous Fluids which are used for sugar, electrolyte or fluid replenishment. He pleaded that the impugned order is not sustainable and, therefore, the requirement of pre-deposit of the duty demand, interest and penalty may be waived for hearing of the appeal and its recovery may be stayed till the final decision of the matter. He also pleaded that in the alternative, the matter itself may be remanded to the Commissioner for de novo adjudication. 3.1 With regard to the order dated 29.10.2010 reported in 2011 (264) ELT 73 (Tribunal-Delhi) passed by the Delhi Bench of the Tribunal in case of Ives Drugs (India) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant have themselves pointed out that the products, in question, contained medicaments which are required to be administered and have been added to the Intravenous Fluids for the sake of the convenience of the patients and to avoid multiple infusion. He also pleaded that the opinion of Dr. Vivek Sullere is of no evidentiary value as he is one of the lakhs of Doctors in India. He, therefore, pleaded that this is not the case for waiver from the requirement of pre-deposit. 5. We have considered the submissions from both the sides and perused the records. 6. The only point of dispute in this case is as to whether the products, in question, Tinidazole Intravenous Infusion (Tinipidi), Metroidazole Sodium Chloride Injection, Metronidazole Injection with Dextrose, Ciprofloxacin Injection with Dextrose,Ciprofloxacin Injection with Sodium Chloride, and Mannitol Injection, all of which contain antibiotics in saline or glucose medium and other medicaments and are meant for Intravenous infusion are covered for duty exemption by the entry no.56 of the notification no.3/2001-CE dated 1.3.2001 which covered, Intravenous Fluids which are used for sugar, electrolyte and fluid replenishment. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.03.2009 while remanding the matter to the Tribunal. Thus, it cannot be said that the appellant have prima facie case in their favour. 7. At this stage, for deciding the application for waiver from the requirement of pre-deposit under Section 35 F of the Central Excise Act, 1944, the Tribunal is required to take prima facie view on merits so as to assess the risk to the Revenue, as in terms of the Apex Courts judgements in cases of Benara Valves Ltd. (supra) and also in the case of Indu Nissar Oxo Chemicals Industries Ltd. Vs. Union of India reported in 2008 (221) ELT 7 (SC) while considering the application for waiver from the requirement of pre-deposit under Section 35 F of the Central Excise Act, 1944 Section 129 E of the Customs Act, 1962, only two considerations have to be taken into account undue hardship to the assessee and safeguarding the interests of the Revenue. The undue hardship is determined on the basis as to whether the assessee has prima facie case in his favour and if so, to what extent. The Revenues interest have to be safeguarded keeping in view the factors which are in favour of the Revenue. At this stage, ld. Counsel for the Appellant pleaded that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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