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TMI Blog2024 (1) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... ded, we find that to avail the benefits of said Notifications, it is necessary to fulfill the conditions viz. (i) formulation means medicaments processed out of or containing one or more bulk drugs, with or without the use of any pharmaceuticals aids (such as diluent, disintegrating agents, moistening agent, lubricant, buffering agent, stabilizer or preserver) which are therapeutically inert and do not interfere with therapeutical or prophylactic activity of the drugs, for internal or external use, or in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals; and (ii) it shall not include any substance to which the provisions of Drugs and Cosmetics Act, 1940 do not apply. Therefore, the finding of the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd, M/s Indi Pharmaceuticals and M/s Bliss GVS Pharma Ltd using their brand name following the procedure laid down under the Central Excise Rules. On the basis of scrutiny of the records, a show cause notice was issued to the appellant alleging that during the relevant period from May 2008 to December 2013, they had cleared the formulations namely artesunate, artemether, arteether, dihydroartemisinin and artelinic acid on payment of duty, whereas, the said formulations are absolutely exempted under Notification No. 4/2006-CE dated 01.03.2006 superseded by Notification No. 12/2012-CE dated 17.03.2012, thereby wrongly availed inadmissible credit of Rs.1,07,51,843/- on various inputs/input services used in manufacture of said finished product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medicaments is contrary to the principle of law settled by the Hon ble Bombay High Court in the case of CCE, Pune-III vs Ajinkya Enterprises 2013 (294) ELT 203 (Bom.), which has been followed by the Hon ble Karnataka High Court in the case of CCE, Bangalore-V vs. Vishal Precision Steel Tubes Strips Pvt Ltd 2017 (349) ELT 686 (Kar.). It is his contention that even though the present case relates to availing of the conditional exemption Notification, but once the department accepts the duty paid on the final products, the credit availed on the inputs cannot be denied. Further, he submits that the Appellant has not suppressed the facts from the department, as the payment of duty on the formulations manufactured on Loan License basis were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2006 and 12/2012-CE dt. 17.03.2012, hence, discharging duty on the same be considered as a deposit and Cenvat Credit availed on inputs/input services, accordingly, is not admissible. 8. The ld. Advocate for the appellants, on the other hand, has vehemently argued that Notification No. 4/2006-CE dated 01.03.2006 superseded by Notification No. 12/2012CE dt. 17.03.2012, is conditional Notification and not an absolute one as alleged by the Revenue. Hence, credit availed on the inputs is not irregular. 9. Going through the said Notification No. 4/2006-CE dated 01.03.2006 and 12/2012-CE dated 17.03.2012, similarly worded, we find that to avail the benefits of said Notifications, it is necessary to fulfill the conditions viz. (i) formulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phs 8 and 9 observed thus :- 8. We see no merit in the above contentions. As rightly contended by the representative of the assessee appearing in person, till 1st March, 2005 the Revenue has accepted that the activity carried on by the assessee constituted manufacturing activity in view of Board Circular dated 7th September, 2001 and accordingly, held that the assessee is entitled to take credit of duty paid on HR/CR coils. It is only because, the Board, on 2nd March, 2005 has withdrawn the Circular dated 7th September, 2001, the Revenue is claiming that the activity carried on by the assessee does not amount to manufacturing activity. The question is, whether on the facts of the present case, the Revenue, based on the Circular dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at-III v. Creative Enterprises - 2009 (235) E.L.T. 785 (Guj.) at paragraph 6, it was observed thus :- 6. When one goes through the order of the first appellate authority, it is apparent that the respondent has been held to be a manufacturer as defined in Section 2(f) of the Central Excise Act, 1944. The appellate authority has taken into consideration the activities carried on by the respondent-assessee. The Tribunal is justified in holding that if the activity of the respondent-assessee does not amount to manufacture there can be no question of levy of duty and if duty is levied. Modvat credit cannot be denied by holding that there is no manufacture . 7. It is an undisputed position that the final product is treated as dutiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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