Customs, Excise and Gold Tribunal - Mumbai
Fine Chemicals (Division Of Super Fine ... vs Commissioner Of Central Excise And ... on 20 July, 2001
Equivalent citations: 2002(149)ELT131(TRI-MUMBAI)
ORDER
Gowri Shankar, Member (Technical)
1. The application by Fine Chemicals is for waiver of deposit of duty of Rs 51.28 lakhs, and penalty of equal amount on it, and the application by S.J. Sanghvi, its director, is for waiver of deposit of penalty under Rule 209A of Rs 5.00 lakhs imposed on him.
2. Duty has been demanded, and penalties imposed, on the ground that the applicant was not entitled to the benefit of the exemption contained in notification 6/94 in respect of the roxithromycin manufactured and cleared by it.
3. The exemption has been denied on the ground that the product is not a bulk as defined in the notification because it did not, at the relevant time (1994-96) figure in the pharmacopoeia. The counsel for the applicant does not deny that it did not figure in the pharmacopoeia but contents that the extended period of limitation contained in the notification will not be available. He says that the classification list for the product has been approved. That list did not indicate that it figure in any pharmacopoeia. There was therefore no suppression of facts.
4. The departmental representative reiterates the Commissioner's finding, which is that the assessee suppressed the fact that the product was not mentioned in the pharmacopoeia.
5. The notification of the rules doe snot require that there must be a specific mention in the classification list, as to whether the product figure in pharmacopoeia or not. No doubt, it is true that the applicant did not indicate in the classification any pharmacopoeia, whereas it did for all the other products contained in the notification. The explanations tendered for these state of affairs are somewhat difficult to accept. However, that is not really relevant, because the department having seen this declaration which did not contain any misdeclaration, has acted upon it and approved from 1991 onwards. It cannot now prima facie turn around and say that it was busy in approving. We do not find any material prima facie to say that it suppressed the facts. Accordingly, on the ground of limitation, we waive deposit of the duty, and penalties on both the applicants and stay their recovery.
6. The department shall not dispose of the plant and machinery ordered confiscation and its normal function should not be disturbed during the pendency of the appeal.