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TMI Blog2022 (7) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... nit 1 and 2 for the period June 2013 to October 2015 and March 2013 to December 2013 respectively, demand was set aside by the Additional Commissioner vide OIO dated 30.01.2020. The said orders were also accepted by the department and no further appeal was filed. From the decision of this Tribunal it can be seen that except difference of the period entire facts of the case is identical. Therefore the issue is no long res-integra. The demand in the present case also is not sustainable hence the impugned orders are set side - appeal allowed. - Excise Appeal No.10712 of 2019, 10505 of 2018, 11356 of 2019 and 11357 of 2019 - A/10781-10784/2022 - Dated:- 7-7-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Anand Nainawati Shri Ishan Bhatt, Advocates for the Appellant Shri G.Kirupanandan, Superintendent (Authorized Representative) for the Respondent ORDER The appellant M/s Biochem Pharmaceuticals Industries Ltd (Now M/s Zydus Health Care Ltd) are inter alia engaged in the manufacture of medicaments falling under Chapter 30 of the First Schedule to the Central Excise Tariff Act, 1985. The Appellants are manufacturing the medica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2019 the present impugned orders are not sustainable. He also placed reliance on the following decisions: Jayanti Food Processing (P) Ltd 2007 (215) ELT 327 (SC) CCE vs. Accrapac (India) Pvt. Ltd 2010 (257) ELT 84 (Guj.) UOI vs. Naman Singh Sekhawat -2008 (225) ELT 161 (SC) Castrol India Ltd vs. CCE 2008 (223) ELT 638 (T) Zydus Healthcare Ltd vs. CCE - 2019 (10) TMI 810 CESTAT AHMEDABAD 3. Shri G.Kirupanandan, Learned Superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. On behalf of the revenue a written submission was filed on 02.07.2021 which is taken on record. 4. We have carefully considered the submission made by both sides and perused the records. We find that in the present case there is only difference of period i.e. for the period November 2015 to September 2016 in respect unit 1 and January 2014 to March 2016 in respect of unit 2. We find that in respect of both the unit for the period January 2005 to May 2013 and March 2010 to February 2013 this tribunal vide order dated 28.06.2019 set aside the demand on the identical issue and in the same set of facts. This order was accepted by the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e task of the administration of the relevant legislation. In the present case, the Adjudicating authority ought to have obtained/collected opinion of the Drug Controller Authority of the respective State Govt. and accordingly proceeded with the matter. Therefore, we are of the view that all these appeals be remanded to the Adjudicating Commissioner even if in majority cases, the appeals were against the order of Commissioner (Appeals), to re-adjudicate the case after obtaining necessary clarification/opinion from the respective State authority who administer the Drugs (Price Control) Order, 1995. All issues are kept open. The appeals are thus allowed by way of remand to the jurisdictional Commissioner of Central Excise. 2.1 He however pointed out that at the material time, the order of Tribunal failed to take notice of the Revenue s appeal No. E/778/2011 filed against the order impugned in those proceedings. He pointed out that since the matter was remanded, the said appeal of the Revenue against earlier OIO became infructuous. 2.2 Ld. Counsel produced certificates from South Eastern Railway, Ispat General Hospital of SAIL, South Central Railway, Secunderabad, Andhra Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2) shall apply, and allows as abatement the percentage of retail sale price mentioned in the corresponding entry in column (4) of the said Table :- TABLES. No. Chapter or Heading No. or Sub-heading No. Description Abatement as a percentage of retail sale price(1)(2)(3)(4)1.3003.10Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic 35%2.3003. 20Medicaments (other than patent or proprietary) other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic systems35%This notification2. shall come into force on the 8th day of January, 2005.Explanation. -For the purposes of this notification, retail sale price means the retail price displayed by the manufacturer under the provisions of the Drugs (Prices Control) Order, 1995. It is noted that for the purpose of this notification, the retail sale price means the retail sale price displayed the manufacturer under the provision of Drugs (Price Control) Order 1995. The Drug (Price Control) Order 1995 in para 14 and 15 mandates as follows:- 14. Carrying into effect the price fixed or revised by the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the list of customers has been enumerated. The gist of the investigation is reproduced in para 10,11,12 and 13 of the impugned order. The investigations confirmed that no evidence of printing of MRP on institutional supplies made through dealers was found. In fact whatever evidence was produced showed that the products contained the marking hospital supply-not for sale only.4.2The impugned order has picked up the words formulation intend for sale appearing in para14 and para15 of the Drugs (Price Control) Order 1995 and come to the conclusion that it was mandatory in the facts and circumstances of the case to print the MRP. The arguments is summarized in para 4.3.4of the impugned order in following words. 4.3.4 Now, deliberate on the said DPCO, 1995. I observe that as per its para no. 14(2), every manufacturer of distributor of a formulation intended for sale shall display in indelible print mark, on the label of the container of the formulation and the minimum pack there offered for retail sale , the retail price of that formulation, notified in the official Gazette or referred to by the Govt. in this regard, with the words retail price not to exceed similar type of provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e container must contain retail sale price and if the content of such container are also sold in retail then each such pack sold in retail must have the MRP printed on it. From above it is apparent that the provisions are attracted only on goods offered for retail sale . In the impugned order, it is seen that the words offered for retail sale appearing in DPCO 1995 have been overlooked. The said order only relies on the word sale and upholds the applicability of the DPCO 1995 to all sales. We find that the sale appearing in para 14 and 15 of DPCO 1995 is only to be read in respect of the goods offered for retail sale . In the instant case the evidence brought on record does not dispute the claim that the goods sold to institutional buyers were not sold (or offered for sale) in retail sale. In these circumstances, we hold that provisions of para 14 and 15 of DPCO 1995 are not attracted in respect of sales to institutional buyers which are not further offered for retail sale. The demand, therefore, cannot be upheld. The appeals of USV is allowed. The penalties imposed are set aside and consequently the appeals of other appellants are also allowed. The appeal of revenue is dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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