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TMI Blog2014 (11) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... the subsequent period. The petitioner is directed to respond to the show cause notice and take all stands highlighted in this writ petition and if any adverse order is passed, he may challenge the same by filing an appeal under the provisions of Section 35 of the Central Excise Act, 1944. - Writ Petition No. 13447 of 2010 - - - Dated:- 5-11-2014 - D.K. Paliwal and P.K. Jaiswal, JJ. Shri A.M. Mathur, Senior Counsel with Ashutosh Upadhyaya, Advocate, for the Petitioner. Shri Prasanna Prasad, Advocate, for the Respondent. ORDER Shri A.M. Mathur, learned Senior Counsel with Shri Ashutosh Upadhyaya, advocate for the petitioner. Shri Prasanna Prasad, advocate for the respondent/Union of India. Heard on the question of admission. By this writ petition under Articles 226/227 of the Constitution of India, the petitioner is praying for quashment of the show cause notices, demanding Duty of Central Excise in respect of intravenous fluids manufactured by the petitioner/company, on which benefit of exemption on Notification No. 36/2000, dated 4-5-2000 and further Notification No. 3/2001, dated 1-3-2001 has been claimed. 2. The petitioner/company is engaged in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression intravenous fluids as prescribed in the impugned notification is contrary to the definition prescribed in Rule 76 of the Drugs Cosmetics Rules. Under Section 5A(1) of the Act, the Central Government has the power to grant exemption from payment of Excise duty subject to terms and conditions mentioned therein. The notification (Annexure P-1) has been issued in exercise of power under Section 5A(1) of the Act. The explanation furnished by respondents for restricting the meaning of intravenous fluids is that Ciprofloxacin, Metronidazole and Mannitol in syrup and tablet form is exigible to Excise duty and there is no logic in exempting them when they are administered in intravenous form. It has further been asserted by the respondents that intravenous fluids do not contain any added substances. Therefore, the Legislature in its wisdom thought it fit to restrict exemption to categories of intravenous fluids which have been mentioned in the notification. Since, the Legislature enjoys very wide latitude in the matter of taxation and rigour of Article 14 is applied less rigorously to taxing statute, it cannot be held that impugned notification suffers from vice of arbitrariness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Commissioner to issue the said notices. Merely because the Commissioner had intended to save limitation, and had issued the said notices as a protective measure, is a situation which is not envisaged under the provisions of the Act. Till the order dated June 24, 2004, Annexure P-8, passed by the Tribunal is operative and binding between the parties, obviously, the Departmental Authorities have absolutely no jurisdiction to issue any show cause notices to the petitioner-firm, under Section 11A of the Act. The aforesaid show cause notices, thus suffer from a complete inherent lack of justification, as of date. In view of the aforesaid discussion, we have no hesitation in quashing the show cause notices, Annexures P-1A to P-1F. However, we clarify that, if and when, the order dated June 24, 2004, Annexure P-8, passed by the Tribunal is set aside, then the Commissioner, Central Excise, respondent No. 2, would be at liberty to initiate such proceedings against the petitioner-firm, as may be initiable legally at that point of time, in terms of the Act, with a corresponding liberty to the petitioner-firm to raise all possible objections, in that event. 6. As per the repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Schedule-H Drug. We do wish to express any opinion on this point. Suffice it to state that on the above two questions/issue, the matter needs to be remitted to the Tribunal for consideration, in accordance with law. 7. Further, in remand, the Principal Bench of the Tribunal, New Delhi vide its Final Order Nos. 759-767/2010-EX., dated 29-10-2010 [2011 (264) E.L.T. 73 (T)] has decided all the appeals of the respondent as well as of the petitioner, after considering all the points directed to be considered/examined by the Apex Court and decided the case/issue in favour of Revenue on merit. The Bench in its order has held that the authorities below therein were justified in denying the benefit of Notification No. 3/2001-C.E. to the products in question with effect from 1-3-2001 but were not justified in denying the same for the period prior to in terms of Notification No. 6/2000-C.E. read with Notification No. 36/2000-C.E. The Court has also waived the penalties imposed on the parties/petitioners on the ground that the matter involves interpretation of law. The net impact of the aforesaid decision is that the demand prior to period of insertion of Notification No. 3/2001-C.E., da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessees are to be partly allowed to the extent they relate to the imposition of penalty and the orders imposing the penalty are to be set aside while confirming the remaining part of the orders, which relates to confirmation of the demand of duty and interest thereon. 97. The appeals filed by the Department against the grant of benefit of Notification No. 3/2001-C.E., dated 1-3-2001 are hereby allowed. The challenge to grant of such benefit under Notification No. 6/2000-C.E., dated 1-3-2000 read with Notification No. 36/2000-C.E., dated 4-5-2000 is rejected. 98. The appeals filed by the assessees rejecting the benefit of Notification No. 3/2001-C.E., dated 1-3-2001 are dismissed. The assessees are entitled for the benefit only in relation to Notification No. 6/2000-C.E., dated 1-3-2000 read with Notification No. 36/2000-C.E., dated 4-5-2000 up to 28-2-2001. 99. In view of what is stated above, all the appeals and the applications filed in the above appeals stand disposed of in above terms. 9. It is also submitted that the writ petition against the show cause notice is not maintainable unless Court is satisfied that show cause notice was totally non est in the eyes of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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