2016 (3) TMI 253

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....12/2012-Cus, dated 17.03.2012 at Sl. No.165. Respondent sought recall of the assessment claiming benefit of Notification No.12/2012-Cus at Sl. No.147(A) at Nil CVD and Notification No.12/2012-Cus at Sl. No. 108 (A) at Nil BCD. The adjudicating authority held that the goods being bulk, drugs and not eligible for the benefit of Notification as Sl. No.147A and 108(A) and it was directed to the respondent to seek the benefit under Sl. No.147(b) and 108(b) respectively and to specific conditions mentioned therein, the respondent relied on the decision of the Tribunal in the case of Cipla Ltd. Vs. CC [2007 (218) ELT 547 (Tri.-Chennai)] and Burroughs Wellcome Vs. CCE, Mumbai [2007 (216) ELT 522 (Tri.-Mumbai)]. But the adjudicating authority did no....

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....s, medicines, diagnostic kits or equipment specified in List 3 (B) Bulk drugs used in the manufacture of drugs or medicines at (A) 5%   5% -   - -   5 165. 29 (except 2905 43 00, 2905 44 00 and 2933 71 00) All goods 7.5% - -   List 3 (See S. No.147 of Table) (1) Allopurinol (2) ............. (83) Ursodeoxycholic Acid Central Excise Notification No.12/2012-CE dated 17.03.2012 Sl. No. Chapter or heading or sub heading or tariff item of the First Schedule Description of excisable goods Rate Condition No. (1) (2) (3) (4) (5) 108 28, 29, 30 or 38 The following goods, namely, (A) Drugs or medic....

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....nnection, their counsel has referred to the definitions of 'drug', 'bulk drug' and 'formulation' given in the Drugs (Prices Control) Order, 1995. ld counsel has also submitted that a similar dispute in relation to Sl. No. 43 of Central Excise Notification No. 11/97 was considered by the West Zonal Bench (W/B) of the Tribunal in Order No. A/461 & 462/2007 dated 20-6-2007 [2007 (216) E.L.T. 522 (Tribunal)} in the case of Burroughs Wellcome (I) Ltd & Pfizer Ltd. v. Commissioner of Central Excise & Customs, Mumbai [Appeal Nos. E/1665/2000 & C/1156/2001] and it was held that, inasmuch as the goods in question were specifically mentioned in List 2 annexed to Sl. No. 43A of the Notification, the benefit of the said entry wo....

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.... 43 (A). 'The Tribunal accepted the assessees contention and held that the drugs imported by them were to be categorized under Sl. No. 43(A) inasmuch as they found mention in List 2. It was further held that, as SI No. 43 (A) was more beneficial than 43 (B), the assessee was not precluded from claiming such benefit at a later stage. It is settled law that, where two exemption Notifications are applicable to a given goods which is otherwise chargeable to duty, the assessee is entitled to avail the benefit of that Notification which is more beneficial vide Indian Oil Corporation Ltd v. CCE - 1991 (53) 347 (Tribunal), CCE v. Indian Petrochemicals - 1997 (92) E.L.T. 13 (S.C) and H.C.L Ltd. v. CC - 2001 (130) E.L.T. 405 (S.C). Applying the s....