Custom, Excise & Service Tax Tribunal
Glenmark Pharmaceuticals Ltd vs Cce Nasik on 3 March, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/1568 & 1569/07 Mum
Arising out of Order-in-Original No. 33/CEX/2007 dated 17.9.2007 passed by the Commissioner of Central Excise & Customs, Nasik.
For approval and signature:
Shri. M.V. Ravindran, Member (Judicial)
Shri. P.R. Chandrasekharan, Member (Technical)
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 : No
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?
Glenmark Pharmaceuticals Ltd.,
:
Appellant
Liva Healthcare Ltd.,
Versus
CCE Nasik
Respondent
Appearance Shri Bharat Rai Chandani, Advocate for appellant Shri Ashwani Kumar Prabhakar, JDR for Respondent CORAM:
Shri. M.V. Ravindran, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical) Date of Hearing : 03.03.11 Date of Decision : 03.03.11 ORDER NO.
Per : M.V. Ravindran These two appeals are directed against the Order-in-Original No.33/CEX/2007 dated 17.9.2007.
2. Relevant facts that arise for consideration are that the appellants M/s. Glenmark Pharmaceuticals Ltd. (hereinafter referred as M/s. GPL) was the manufacturer of P & P medicaments. They entered into an agreement with M/s. Liva Healthcare Ltd. (hereinafter referred as M/s. LHL) for the manufacture of P & P medicaments under loan license basis. The period involved in this case is December 2001 to 7th January 2005. It is the case of the Revenue that the appellant i.e. M/s. GPL is the manufacturer of the medicaments and has to discharge the duty liability on the final products based upon the appellants sale price from the depot, while it is the assessees contention that the loan licensee i.e., M/s. LHL has discharged the duty based upon the cost of production. The adjudicating authority after following due process of law has confirmed the differential duty demand along with interest and also imposed penalty equivalent to duty on M/s. GPL but dropped the proceedings initiated against M/s. LHL for recovery of the CENVAT credit. Aggrieved on such order the appellants are before us.
2. The learned Counsel submitted that the issue involved in this case has been decided in their favour in their own case by the Bench as reported in 2008 (224) ELT 267 (Tri. Mum.). It is his submission that while in the final order dater 28.11.2007 the appeals were allowed when the period involved is the same but was in respect of another job worker namely M/s. Niramay Pharma. He would also submit that in yet another case of the assessee, disposed in their favour by Final Order No. A/334 & 335/2010/EB/C-II dated 09.09.2010 on identical set of facts.
3. The learned DR on the other hand would submit that the judgement of this Tribunal in the appellants own case was based upon the decision of the Bench in the case of Cosme Remedies Ltd vs. Commissioner of Central Excise, Goa 2006 (203) ELT 567 (Tri. Mumbai). It is his submission that in the said judgment, there is a difference of opinion, which has been settled by the majority decision and that the said matter is pending with the Honble Supreme Court as the Revenue has not accepted the said judgment. It is his submission that the matter be kept pending till outcome of the judgement of the Supreme Court.
4. We have considered the submissions made by both the sides.
5. We find that the facts are undisputed in this case as medicaments were being manufactured under loan license basis from M/s LHL. It is also undisputed that M/s. LHLs discharge of duty liability was based upon the cost of production; as per the ratio laid down by the Honble Supreme Court in the case of Ujagar Prints Ltd. On perusal of the Final Order No.A/889-890/2007/C-I (EB) dated 28.11.2007 and Order No. A/334 & 335/2010/EB/C-II dated 09.09.2010 in the appellants own case, we find that the issue involved were identical, except that loan licences were different. Since the issue has already been decided by this Tribunal in favour of the appellants, we do not find any reason to deviate from such views. In view of the foregoing, the impugned order is set aside and the appeals are allowed.
(Dictated in open Court) (P.R. Chandrasekharan) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk 4