9911796707
TMI Blog2015 (12) TMI 1643X X X X Extracts X X X X X X X X Extracts X X X X ..... te under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-1-2004 as Rule 18 authorizes refund of duty only. Government also observes that C.B.E. & C. Circular No. 423/56/98-CX, dated 22-9-1998 relied upon by the applicant was issued in 1998 and subsequently the Hon’ble High Court of Bombay had delivered above said judgment referred in Para 15.1 which was also upheld by the Apex Hon’ble Supreme Court - Application rejected. X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not have held that the benefits of exemption would be available for bulk drugs even if condition No. 2 is not fulfilled. 4.4 That since the buyers of the foreign countries did not fulfil the condition No. 2, the Commissioner (Appeals) should have held that the duty was payable. 4.5 That the Commissioner (Appeals-1) has wrongly referred to the decision of the Hon'ble Supreme Court in the case of Asian Paints - 2002 (142) E.L.T. 522, to hold that recovery of duty can be made pursuant to an appeal filed under Section 35E or by raising demand under Section 11A. That the Commissioner (Appeals-1) has failed and/or neglected to appreciate the said decision of the Hon'ble Supreme Court which arose out of the order of the Larger Bench of the Tribunal in the case of Asian Paints (India) Ltd. - 1994 (73) E.L.T. 433. The Larger Bench in the said case had dealt with a case where show cause notices had proposed to demand amounts that became the subject-matter of the proceedings pursued by the department in the subsequent appeal under Section 35E. That the decision of the Larger Bench on the question referred to it was that 'on the facts and circumstances, the limitation prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2 against entry Sl. No. 47(B) is when bulk drugs have multiple uses. That all exemptions must be strictly construed according to its words and not on any suppressed intention or intendment and must not be extended beyond the express requirements of the language. That there is nothing in the notification to mean that bulk drugs are those which have multiple uses. 4.11 That the Commissioner (Appeals) should have appreciated that the goods, namely, Gemicitabine, Irinotecan and Paclitaxel manufactured by the applicant although specified in the List 3 and List 4 are not usable as drugs or medicines so as to classify under Sl. No. 47(A). The said goods of the applicant are 'bulk drugs' and only used in the manufacture of drugs or medicines. 4.12 That the amount sanctioned by the Assistant Commissioner is proper and correct. 4.13 That the impugned order is otherwise bad, is liable to be quashed and/or set aside. 5. Personal hearing was scheduled in this case on 6-5-2015. Shri Rahul Tangri, Principal Associate Lakshmikumaran & Sridharan Attorneys appeared for personal hearing on behalf of applicant and he reiterated that grounds of revision applications. Shri Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 38 The following goods, namely; (A) Drugs or medicines including their salts and esters and diagnostic test kits, specified in List 3 or List 4 appended to the notification of the Government of India in erstwhile Ministry of Finance (Department of Revenue), No. 21/2002-Customs, dated the 1st March, 2002 NIL 2 (B) Bulk drugs used in the manufacture of the drugs or medicines at (A) above NIL Condition No. 2 :- Where such use is elsewhere than in the factory of production, the exemption shall be allowed if the procedure laid down in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 is followed. 9.2 The definition of 'bulk drugs' has been given in the explanation added to the Sl. No. 43 of the said Notification No. 4/2006-C.E. for the purposes of the Notification. The said explanation reads as : "Bulk drugs", means any pharmaceutical, chemical, biological or plant product including its salts, esters, stereo-isomers and derivatives, conforming to pharmaceutical or other standards specified in the Second Schedule to the Drugs and Cosmetics Act, 1940 (23 of 1940), and which is used as such or as an ingredient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Hence, Government finds that order of the appellate authority for recovery of the amount paid as rebate are legal and proper. 15. Government now proceeds to examine the issue as to whether any show cause notice is to be issued before appeal is filed under Section 35E as contended by the applicant. 15.1 Government observes that against the contention of the applicant that no show cause notice was issued before filing the appeal, Commissioner (Appeals) while disagreeing with said contention relied upon Hon'ble Supreme Court's judgment in the case of M/s. Asian Paints v. CCE, Bombay [2002 (142) E.L.T. 522 (S.C.) 3 Member Bench], has held that recovery of duty can be made pursuant to an appeal filed under Section 35E or by raising demand under Section 11A of Central Excise Act, 1944 as both operate under different fields and are invoked for different purposes with different time limits. The basic principle laid in the said decision of the Apex Court that recovery can be made pursuant to an appeal filed under Section 35E is clearly applicable to the present case. Government does not, therefore, find as tenable the applicant's plea that the said judgment is not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
