Custom, Excise & Service Tax Tribunal
M/S General Pharmaceuticals Pvt. Ltd vs Cce, Pune I on 25 April, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II IN APPEAL NO. E/515/07 (Arising out of Order-in-Appeal No. PI/345/2006 dated 28.01.2007 passed by the Commissioner of Central Excise (Appeals) Pune- I.) For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) =====================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
====================================================
M/s General Pharmaceuticals Pvt. Ltd.
: Appellant
Versus
CCE, Pune I
: Respondent
Appearance
Ms. Anjali Hirawat, Advocate
: For Appellant
Shri B. Kumar Iyer, Superintendent (A.R.)
: For Respondent
CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)
Date of Hearing : 25.04.2014 Date of Decision: 25.04.2014
ORDER NO.......................................................
Per: Anil Choudhary:
Heard the parties.
2. The issue relates to SSI exemption in respect of medicine product namely Amigen, Saigen and Sigum, which are trade/brand names and were being advertised in the journals as well as in the newspapers by appellant. The issue involved in the matter is covered by the earlier decision of the Hon'ble Supreme Court in Civil No. 3076 of 2004 dated 15.02.2006 in the case of General Pharmaceuticals Pvt. Ltd. Vs. CCE, Pune-I 2007 (197) ELT 322 (SC). The Hon'ble Supreme Court had remanded the matter back to the Tribunal in so far as the unregistered products are concerned, for a fresh decision in accordance with the law, to determine the question whether the aforementioned products are brand name(s) of manufacturing Co. or are general trade names.
3. Pursuant to remand by the Hon'ble Apex Court, the Division Bench of this Tribunal decided the issue in favour of the appellant vide final order No. A/364/2007-WZB/C-I/(EB) dated 25.05.2007, the operative portion of the order is as under:-
Accordingly, in the facts and circumstances of the case, as the said three trade names Amigen, Sorgen and Sigum do not belong to any person and more specifically M/s Dai Ichi Karkaria Ltd. we hold that the impugned order, denying the benefit of SSI exemption to the appellant on these three products, is liable to be set aside and we do so. The impugned order to the extent on denying the benefit of SSI exemption to these three trade names is set aside and the appeal of the appellant to that extent is allowed. Thus the appeal is allowed
4. In the mean time pending disposal by the Tribunal pursuant to remand by Hon'ble Apex Court, the appellant had applied for refund of the disputed amount regarding the duty paid under protest. The refund claim was dismissed by the adjudicating authority vide order dated 15.09.2006 holding that the issue is pending in the Tribunal.
4.1 In view of the subsequent final order of the Tribunal dated 25.05.2007 allowing the appeal in appellants favour with consequential relief, the order of the Commissioner or Commissioner (Appeals) has become infructuous, and the same is set aside. Rather, under the doctrine of merger, the impugned orders do not survive.
5. This appeal is allowed with direction to the concerned adjudicating authority to allow the refund amount of Rs. 16,02,626/- being the amount of tax paid under protest, which was paid during the pendency of the case before the Courts. The refund be sanctioned and paid along with interest within 30 days from the date of issue of the order, or filing of the same by the appellant before the authority. Thus, the appeal is allowed.
(Dictated and pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 3