Customs, Excise and Gold Tribunal - Delhi
Franco Indian Biologicals P. Ltd. vs Collector Of Customs on 4 August, 1992
Equivalent citations: 1993(65)ELT110(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. The issue involved in the present appeal relates to the classification of imported goods, namely Cimetidine Powder and the availability of Notification No. 234/82-C.E., dated 1-11-1982.
2. Brief facts leading to the present appeal are that the appellants M/s. Franco Indian Biologicals Pvt. Ltd., Bombay imported a consignment of Cimetidine Powder under Bill of Entry, dated 1-1-1985. The same were assessed under Heading 29.01/45 (13) of the Customs Tariff 1975 read with Chapter 68 of C.E.T. and the appellants paid the duty including the C.V.D. at the rate of 10% accordingly. Subsequently they filed their refund claim contending that the subject imported goods ought to have been classified under Tariff Item 14E and no C.V.D. should be levied. It was rejected by the Assistant Collector. On appeal before the Collector (Appeals), the appellants also inter alia contended that if the subject goods are classifiable under Chapter 68 as held by the Department, then in that case they would be entitled for the benefit of Notification No. 234/82-C.E. However, this plea did not find favour with the Collector (Appeals) as, according to him, this plea being a new one, could not be entertained, observing further that the benefit of Notification 234/82-C.E. is not applicable as the appellants were claiming classification under Chapter 14E of the Customs Tariff. Hence the present appeal.
3. To complete the record, a few facts may also be stated that the appellants also availed the Proforma Credit of Rs. 59,271.20 under Rule 56A of the Central Excise Rules, 1944 against the bank guarantee issued by M/s. Dena Bank, Bombay in terms of Bombay High Court's Order, dated 13-8-1984 passed in Writ Petition No. 1138 of 1984 filed by the present appellants. They have also given an undertaking to the effect that in the event of refund of the aforesaid amount in pursuance of their claim for C.V.D., they will pay the entire amount of Rs. 59,271.20 availed against the said Proforma Credit.
4. Appearing on behalf of the appellants Shri J.C. Patel, learned Counsel submitted that the issue involved in the present case stands decided in favour of the importer of such goods and cited the case of Umedica Laboratories (P) Ltd. v. Collr. of Customs, 1991 (51) E.L.T. 130 (Tri.), wherein it was held that Cimetidine is a bulk drug used for treatment etc. in human beings or animals and used as such or as an ingredient in any formulation and, therefore, exempted from C. V.D. under Notification No. 234/82-C.E. being exempted goods of the description specified therein falling under Item 68 of the C.E.T. He also cited the case of Griffon Laboratories Pvt. Ltd. v. Collector of Customs, 1989 (41) E.L.T. 613, wherein it was held that benefit of a particular Notification is still available even when not claimed before lower authorities if it flows from the classification of goods insisted by the Revenue and upheld by the Tribunal. On the strength of this judgment, it was the contention of the learned Counsel that when the Department itself is classifying the subject goods under Tariff Item 68, then in that event, he is entitled for the benefit of the said Notification and the Collector (Appeals) erred in disallowing the same. In reply, Smt. Ray, learned SDR supported the impugned order passed by the authorities below, stressing that the benefit of the said Notification was never claimed by the appellants before the lower authorities, ie. Assistant Collector and the case be remanded to the Assistant Collector.
5. In his rejoinder it was submitted by the learned Counsel for the appellants that in case the present appeal is allowed with consequential relief, the same (consequential relief) be moulded in accordance with the bank guarantee and the undertaking given by the appellants in terms of the interim order of the Bombay High Court as aforesaid.
6. We have considered the submissions. It is an admitted fact on the record that the Revenue has classified the imported goods under Item 68. We uphold the classification under Item 68 as not challenged and therefore, following the ratio of the judgments rendered by this Tribunal in the case of Griffon Laboratories Pvt. Ltd. and Umedica Laboratories (P) Ltd., supra, we allow the appeal with consequential relief to the appellants. Since they have already availed the benefit of proforma credit under Rule 56A of the Central Excise Rules, we direct that the refund flowing out of the present order be adjusted against the said proforma credit already availed under the bank guarantee and undertaking. After adjustment, the bank guarantee so furnished by the appellants shall stand discharged and the undertaking shall also stand released.
7. The appeal stands disposed of accordingly.