TaxTMI 
TaxTMI 
2015 (11) TMI 1246
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....0, as amended by notification no.36/2000-CE dated 4.5.2000 (Sl.No.47A) provided full duty exemption to intravenous fluid . With effect from 1.3..2001, notification no.3/2001-CE dated 1.3.2001 was issued in superannuation of the earlier notification and Sl.No.56 of this notification provided for nil rate of duty for "IV Fluids which are used for sugar, electrolyte or fluid replenishment and falling under Chapter 30 of the Central Excise Tariff." 1.3. The point of dispute is as to whether during the period from 1.4.2001 to 31.10.2002, the products mentioned in para 1.1 above would be eligible for duty exemption under notification no.3/2001-CE dated 1.3.2001 (Sl.No.56). 1.4. Initially, three show cause notices had been issued for denying the exemption in respect of the above products and recovery of duty. The details of these show cause notices are as under:- (1) Show cause notice dated 7.6.2001 for demand of duty of Rs. 74,92,015/- for the period from 4.5.2000 to 31.3.2001 (2) Show cause notice dated 23.04.2000 for demand of duty amounting to Rs. 97,68,855/- for the period from 1.4.2001 to 31.03.2002 (3) Show cause n....
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....herapeutic value, it will not come within the exemption because it has to be treated as a Schedule-H drug. We do wish to express any opinion on this point. Suffice it to state that on the above two questions/issues, the matter needs to be remitted to the Tribunal for consideration in accordance with law. 8. We may add that exemption notifications have to be read strictly. We may also add that the burden is on the assessee to prove that the item falls within the four corners of the exemption notification. 9. Before concluding, we may state that if on the second issue, regarding Schedule-H Drug, as spelt out hereinabove, if the Tribunal feels that the matter requires further evidence, it may either itself decide that point after giving opportunity to the parties or it may remit the matter to the Adjudicating Authority for its decision on factual aspect in accordance with law." 1.7. In de novo proceedings, the Delhi Bench of the Tribunal decided the appeals of all the parties except the present appeal no.E/53023/2014-EX(DB) filed by appellant in this case vide Final Order No.759-767/2010-EX dated 28.04.2010 reported in 2011 (264) ELT 73 (Tribunal-Delhi). Here, it ....
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....s of Rs. 6,54,674/- , Rs. 97,68,855/- and Rs. 57,59,223/- along with interest confirmed under Section 11 AB and besides this, he also imposed penalty on the appellant under Rule 25 (1) of the Central Excise Rules, 2002 read with Rule 173Q of the Central Excise Rules, 1944. 1.10. Against the above order of the Commissioner, this appeal has been filed along with stay application. 2. Heard both the sides in respect of stay application . 3. Shri C. Harishankar, Sr. Advocate, the ld. Counsel for the appellant, pleaded that the impugned order has been passed by ignoring the directions of the Tribunal in the remand order, that in the remand order, the Tribunal after specifically referring to the Affidavit dated 7.11.2009 of Dr. Vivek Sullere, which had been admitted as evidence, had directed the Commissioner to consider the same but the same has not been considered anywhere in the impugned order simply on the ground that the Department has obtained an independent opinion from Govindgram Saksaria Institute of Technology and Science, Indore, one of the oldest and most prestigious Institute vide its letter dated 30.11.2009, based upon which the stand taken by the noticee does not ap....
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....es Drugs and Others (supra) stand affirmed by the Honble Punjab & Haryana High Court, that not only this, a ROM application was also filed in respect of the order passed by Delhi Bench of the Tribunal and the same was also dismissed, that the Tribunal in its Final Order dated 29.10.2010 after analyzing the Entry No.56 in the notification no.3/2001-CE has held that w.e.f. 1.3.2006, the exemption would not be available to the products, in question, which contained anti-biotic substances, etc. and exemption to the products, in question, would be available only for the period prior to 1.3.2001 when the entry in the notification covered Intravenous Fluids and was not qualified by the expression, which are meant for replenishment of sugar, electrolyte or other fluids, that the matter of the appellant cannot be said to be the case where the appellant have prima facie case in their favour and that in accordance with Section 35 F of the Central Excise Act as interpreted by the Apex Court in the case of Benara Valves Ltd. Vs. CCE reported in 2006 (204) ELT 513 (SC), the necessary conditions to safeguard the interest of the Revenue have to be prescribed. 4.1 Shri Ranjan Khanna, ld. DR a....
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.... the expression, which are used for sugar, electrolyte and fluid replenishment. 7. We also find that Tribunal's judgement dated 29.10.2010, on appeal being filed before the Punjab & Haryana High Court by M/s. Venus Remedies Ltd. has been upheld. Even otherwise, we find that if the appellant's plea that even after 1.3.2001, the Intravenous Fluids meant for administering medicines besides replenishments of sugar, electrolyte and other fluids are covered by the entry No.56 of exemption notification no.3/2001-CE is accepted, the expression which are used for sugar electrolyte and fluid replenishment in the Entry No.56 of notification no.3/2001-CE would become reluctant and it would amount to extending the benefit of exemption to any Intravenous fluids. Therefore, we are of the prima facie view that irrespective of the evidence of Dr. Vivek Sullere, w.e.f. 1.3.2001 the duty exemption would be restricted only to those Intravenous Fluids, which are used for sugar, electrolyte and fluid replenishment and the same would not be available to those Intravenous Fluids, which are meant for some other purposes. It is well settled law that the exemption notifications have to be constru....