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TMI Blog2019 (10) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the appellant who had manufactured the vaccine in the name of M/s Panheber/Panera Biotec Pvt. Ltd. - appeal dismissed - decided against appellant. - Excise Appeal No. 60728 of 2017 - FINAL ORDER NO. 60794/2019 - Dated:- 1-10-2019 - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND SHRI C.L. MAHAR, MEMBER (TECHNICAL) Shri T.R. Rustagi, Advocate for the appellant. Shri Bhasha Ram, Authorized Representative (DR) for the Respondent. ORDER The brief facts of the matter are that M/s Panacea Biotec Ltd. (appellants) manufactured and cleared certain dutiable P or P Medicines (drug formulations, but not vaccines whether in bulk or otherwise) classifying under Chapter 30 of the Central Excise Tariff Act, 1985 from their factory located at Chandigarh Ambala Highway, Lalru, Punjab. It is claimed by the appellant that in the same premises another independent manufacturing unit in the name of Panheber Biotec Pvt. Ltd. (now name has been changed to Panera Biotec Pvt. Ltd. w.e.f. 02/07/2008) manufactured vaccine namely Haemophilus Influenzae Vaccine. It is claimed that M/s Panera Biotech has taken some portion of premises of the appellant on le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X (DB) dated 14/09/2015 has passed the following order :- 6. In this case the claim of the appellant is that they are not the manufacturer of vaccine which is an exempted product. In fact same is manufactured by M/s Panheber Biotec Pvt. Ltd. a separate legal entity located in the same factory compound. This fact is required to be ascertained by verifying whether M/s Panheber Biotec Pvt. Ltd. is a separate entity and manufacturer of vaccine only. The fact that whether the appellant is manufacturer of vaccine or not is also to be verified, which the lower authority has failed to do so. In these circumstances, the impugned order does not deserve any merits. Accordingly, the same is set aside and the matter is remanded back to the Adjudicating Authority first to ascertain whether appellant is manufacturer of vaccine, in question, which is duty free or not and thereafter to pass an appropriate order in accordance with law after consideration of the issues raised by the appellant in their defence by affording reasonable opportunity to the appellant. The appeal is disposed of in the above terms . 4. Accordingly, the matter was remanded back to the Original Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he RG-1 register and ER-1 register filed by the appellant. It has further been emphasized that the appellant has already given enough evidence to the Adjudicating Authority that they have not manufactured vaccine and same was manufactured by M/s Panheber/Panera and supplied to them. 8. The learned Advocate has further contended that appellant have submitted a license from the Drug Controller of Government of Punjab which indicate that the appellant did not have necessary license for manufacture of vaccine in its plant at Lalru unit. This very fact should put all the doubts to the rest because a vaccine cannot be manufactured without a proper drug license, however, the Adjudicating Authority has ignored this point and proceeded to confirm the reversal of the Cenvat credit as demanded in the show cause notice. 9. The learned Advocate has also contended that the Department in the show cause notice has not identified the particular services which are alleged to have been used as common services and manufactured dutiable as well as exempted goods. 10. We have also heard learned Departmental Representative who has reiterated findings as given in the order-in-or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Panacea Biotec Ltd. was also changed because the part of Building Block was leased to Panera Biotec Pvt. Ltd., but there is no record in his office which reveals that Panera Biotec Ltd., was legal entity in the same premises before 2011. 3.4.4 that in light of the above, his office is of the view that it cannot be established that M/s Panera Biotec Ltd. was a separate legal entity during the relevant period as they got themselves registered with the department in the year 2011 . 12. It can be seen from the above that the Assistant Commissioner has very categorically mentioned that (i) there is no mention about the existence of M/s Panheber/Panera in the original ground plant. It is also worth taking a note that M/s Panera Biotec Ltd. was issued a drug license on 18/01/2008 to manufacture vaccine whereas as per the central excise record M/s Panheber Biotec Pvt. Ltd./Panera Biotec has applied for central excise registration only on 07/03/2011 which was provided to them on 16/05/2011. We also take note of the fact that the financial statements of M/s Panera for the relevant period i.e. 2008-2009 did not show any supply of vaccine to the appellant. We find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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