2011 (1) TMI 717 - AT - Central Excise

Tribunal remands duty appeal for re-quantification pre-23/07/96

Concept Pharmaceutical Ltd., Versus Commissioner of Central Excise, Mumbai 

The Tribunal allowed one appeal and remanded another for re-quantification of duty payable for the period before 23/07/96. The appellants were found ... Applicability of Notification No.67/95-CE - Applicability of notification No.7/94 dated 01/03/94 - The appellants are engaged in the manufacture of various pharmaceutical products viz., Ampicillion Sodium Injections. These injections were cleared by the appellants on payment of duty when they were sold under the brand name of 'Conampi Injection' under heading 3003.10 of the Central Excise Tariff Act, 1985. But when these injections were cleared bearing generic name no duty was paid on them, but the appellants reversed 8% of the sale price on these clearances. During the course of manufacture of the above said injections, an intermediate stage comes into existence i.e. Ampicillion Sodium powder is manufactured by the appellants and which have been captively consumed to manufacture the final products viz., Ampicillion Sodium Injections. - held that : Appellant is not entitled for the benefit of notification No.7/94 dated 01/03/94 because the appellants are the manufacturer of Ampicillion Sodium Injections, which cannot be termed as bulk drugs.and appellants are entitled for the benefit of Notification No.10/96-CE dated 23/07/96. - it is remanded to original adjudicating authority for re-quantification of the demands for the period prior to 23/07/96 after reversal of 8% of the value of the exempted products cleared by them. Issues:- Benefit of Notification No.67/95-CE- Demand of duty on captively consumed goods- Benefit of Notification No.10/96-CE- Benefit of Notification No.7/94-CE- Bar of limitation for show-cause notice No.38/CE/97Benefit of Notification No.67/95-CE:The appellants appealed against orders where the adjudication order was set aside by the lower appellate authority. The Revenue contended that the appellants were not entitled to the benefit of Notification No.67/95. The Tribunal agreed with the Revenue's arguments, stating that the appellants did not contest this point. The appellants claimed benefit under Notification No.10/96-CE, which exempts goods consumed in the manufacture of specified goods falling under Chapter 3003 of the CETA, 1985. The Tribunal found the appellants entitled to this benefit from 23/07/96 onwards.Demand of Duty on Captively Consumed Goods:Show-cause notices were issued proposing duty demand on Ampicillion Sodium used captively in the manufacture of exempted final products. The appellants argued that they reversed an amount exceeding the proposed demand and sought the benefit of Notification No.7/94-CE. The Tribunal found the appellants not entitled to the benefit of this notification as it applies only to the manufacture of bulk drugs, not Ampicillion Sodium Injections.Bar of Limitation for Show-Cause Notice No.38/CE/97:The appellants claimed that the show-cause notice No.38/CE/97 dated 12/07/97 was barred by limitation due to no suppression of facts. The Tribunal did not address this issue explicitly but remanded the case for re-quantification of duty payable for the period prior to 23/07/96, keeping the issue open on limitation.Conclusion:The Tribunal allowed one appeal and remanded another for re-quantification of duty payable for the period before 23/07/96. The appellants were found entitled to the benefit of Notification No.10/96-CE from 23/07/96 onwards but not to the benefit of Notification No.7/94-CE for the period prior to that. The matter was remanded for further proceedings without imposing any penalties due to the interpretational nature of the issues involved.