2007 (6) TMI 354

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....izer Ltd. was earlier heard by another Bench but has been re-listed by Registry for fresh hearing by fresh Bench along with the first appeal, as the same issue is involved in both the appeals. 3. M/s. Burroughs Wellcome (I) Ltd. have imported Polymyxin B Sulphate and used the same in the manufacture of Neosporin, admittedly using some other ingredients. M/s. Pfizer Ltd. have imported Cefoperazone Sodium and have used the same for manufacturing Cefoperazone Sodium Injections. The issue relates to grant of exemption under Notification 11/97 for one period and thereafter under Notifications 23/98 and 16/2000 during the subsequent periods. For convenience, we reproduce the relevant portion of Notification 11/97 under entry 43 to the table....

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.... 6. Pfizer have claimed beneficial exemption under serial No. 43(A) at the stage of original adjudication whereas Burroughs have claimed the exemption under 43(A) at the second appeal stage before the Tribunal. 7. The Tribunal in its order dated 8-1-2001 [2001 (129) E.L.T. 540 (Tribunal) had allowed Burroughs exemption under serial No. 43(A) which has since been set aside by the Hon'ble Supreme Court [2006 (202) E.L.T. 737 (S.C.)], resulting in the present proceedings on remand. 8. Shri V. Sridharan, learned Advocate appearing for Burroughs, states that the exemption under serial No. 43(A) is more beneficial as it exempts basic customs duty as well as additional customs duty and no procedure is required to be followed subse....

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....bsp; Prince Khadi Woollen Handloom Prod. Coop. Indl. Society v. CCE - 1996 (88) E.L.T. 637 (S.C.), (2)     Warner Hindustan Ltd. v. CCE, Hyderabad - 1999 (113) E.L.T. 24 (S.C.), (3)     Commissioner v. J.L. Morison (India) Ltd. - 2003 (151) E.L.T. A97 (S.C.), (4)     Commissioner v. Commercial Body Builders - 2003 (151) E.L.T. A288 (S.C.), and (5)     CC, Mumbai v. Toyo Engineering India Ltd. - 2006 (201) E.L.T. 513 (S.C.). 11. Shri Uma Shankar, learned DR appearing for the department in the case of Pfizer, also states that the life saving drug should be in a form ready to use and bulk drugs cannot be considered as life saving drugs to merit exemption ....

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.... be made before the original authority cannot be brushed aside, particularly when same appellants have not claimed an exemption earlier if grant of such an exemption requires verification at the original stage, which has not been done. However, in the instant case, we find that the phrase "life saving drugs" has not been defined either in the notification or in the Drugs (Prices Control) Order. Moreover, "drugs" have been defined to include "bulk drugs". As such life saving drugs can also include "bulk drugs". Accordingly, we are of the view that even though the appellants had earlier claimed exemption for the impugned goods stating these to be bulk drugs, they cannot be precluded from claiming the exemption for life saving drugs in respect....