2017 (5) TMI 326

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.... department's case is that as per the earlier order-in-original No.CEX/186-187/99/Dn.III dated 23-3-99 passed by the Asstt. Commissioner Central Excise Div. II, the appellant was supposed to pay correct excise duty @ 16% which they failed to do so. Accordingly, show cause notice dated 30-1-1999 was issued proposing classification under sub heading 3003.20. The basis of show cause notice is that per the Hon'ble Supreme Court decision in case of M/s. Astra Pharmaceuticals reported in 1995 ELT (75) 214 the distinction between House Mark and "Trade/Brand Name" has been clearly made. In the adjudication order the adjudicating authority confirmed the demand of differential duty and also imposed penalty under Rule 173Q, interest also demanded ....

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....566/16/EB dated 13-1-2016 held that Oxytetracycline Hydrochloreide 500mg capsule and Oxytetracycline Hydrochloreide 500mg tablet classified under 3003.20 as medicament other than P&P medicament therefore issue is no longer res-integra and clearly covered by this Tribunal order. He referred to the packaging boxes of Oxytetracycline Capsules I.P. 500mg from which it is clear that name of the medicament i.e. Oxytetracycline Capsule 500mg which is generic medicine and the same is other than P&P Medicament therefore correct claissificaiton is 3003.20. 3. Shri. V.K. Shastri, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by ....

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....does not flow from the show cause notice nor from the adjudication order therefore it is not open to the Ld. Commissioner to create a new case at the appeal stage. For this reason also the order is not sustainable. As per our above discussion, we are of the considered view that product in question i.e. Oxytetrcycline Capsules I.P. 500 mg is a generic medicine, other than the P&P medicament and correctly classifiable under Chapter heading 3003.20, therefore the impugned order is set aside. Appeal is allowed. (Pronounced in court on 24/04/2017) ============= Document 1 бш 009 Pfizer OXYTETRACYCLINE CAPSULES I.P. 500 mg Mg Lic No Lei No Mig Date Exp Date 3229-A 120-51283 L MAY 2001 2002 ال....