Customs, Excise and Gold Tribunal - Delhi
Cyanamid India Limited vs Collector Of Central Excise on 23 May, 1988
Equivalent citations: 1988(18)ECR13(TRI.-DELHI)
ORDER D.C. Mandal, Member (T)
1. By the impugned order the Collector of Central Excise (Appeals), disposed of five appeals filed before him against the five orders-in-original passed by the Assistant Collector of Central Excise, Surat. By these five orders-in-original, the Assistant Collector rejected refund claims in respect of five amounts as specified in (a), (b), (c), (d) and (e) of paragraph 2 of the order-in-appeal. Out of the two appeals filed before us, appeal No. ED/SB/2182/84-C relates to refund claim for Rs. 1,78,774.86 in respect of (i) Acromycin capsules, (ii) Acromycin Eye & Ear Ointment 3.5 gm., (iii) Acromycin eye ear oil suspension, (iv) Acromycin Intravenous 250 mg., (v) Acromycin Top ointment 14.2 gm. and (vi) Acromycin Soluble Tablets for the period from 10.5.1977 to 7.7.1977. Appeal No. ED/SB/2192/84-C relates to refund claim for Rs. 1,68,633.42 in respect of (i) Hetrazan Tablets and (ii) Caricide Tablets for the period from 10.5.1977 to 7.7.1977.
2. The facts of the case in brief are that the appellants manufacture Patent or Proprietory medicines. Among many medicines, they manufacture the following medicines, the ingredients of which are also specified against each:
Name of the Medicine Specified ingredients Other ingredients
(not specified in
the Notification)
_______________________________________________________________________________ I. (a) Hetrazan Tablets Diethylcarbamazine Citrates Dibasic Calcitum physphate
(b) Caricide Tablets Diethylcarbamazine Citrate Dibasic Calcium (Vet) physphate II. Acromycin Intramuscular Tetracycline Hcl Lignocaine Hydro-
Injection chloride
III. i) Acromycin Capsules Tetracycline Hcl N.A.
ii) Acromycin Eye Ear Oil Susp. " "
iii) Acromycin Eye Ear ointment " "
3.5 gm.
iv) Acromycin Intravenous 250mg. " "
v) Acromycin Top ointment " "
14.2 gms.
vi) Acromycin Soluble Tablets " "
By Notification No. 116/69-CE dated 3.5.1969 as amended by Notification No. 89/77-CE dated 10.5.1977, Central Excise duty on Patent or Proprietory medicines containing one or more ingredients specified in the Schedule to the aforesaid Notification was reduced to 2 1/2% ad valorem. Such medicines were also eligible for this concessional rate of duty if they contained non-specified ingredients provided such ingredients (a) were pharmaceutical necessities; (b) therapeutically inert and (c) did not interfere with the therapeutic or prophylactic activity of the specified ingredients contained in the medicines. By amending Notification No. 89/77-CE dated 10.5.1977, the specified ingredients mentioned against the above mentioned medicines of the appellants were included in the exemption Notification No. 116/69-CE dated 3.5.1969. As they were not aware of the existence of the amending Notification No. 89/77-CE dated 10.5.1977, the appellants filed their classification list No 2/77 effective from 17/18.6.1977 in respect of the aforesaid medicines showing the rate of duty as 12 1/2% ad valorem. The said classification list was approved by the Assistant Collector of Central Excise on 20.8.1977. After the fact of amending Notification dated 10.5.1977 came to the notice of the appellants they filed a revised classification list No. 5/77 on 8.7.1977 claiming concessional rate of duty at 2 1/2% ad valorem in supersession of their earlier classification list No. 2/77. The classification list No 5/77 filed on 8.7.1977 was approved by the Assistant Collector of Central Excise provisionally on 13.9.1977 and the same was finally approved on 20.8.1979 and communicated vide his order No. V (14)E/30.4/77/CL dated 21.8.1979. By the said order the Assistant Collector of Central Excise dis-allowed the concessional rate of duty at 2 1/2% ad valorem on Hetrazan Tablets 10s, Caricide Tablets (Vet) 10s, and also on Acromycin Intramuscular Injections of 100 mg. 100 mg. (Vet) and 500 mg. (Vet). The classification list in respect of other products mentioned in classification list N. 5/77, viz. Acromycin Capsules, Acromycin Eye and Ear Oil suspension, Acromycin Eye and Ear Ointment 3.5 gm. Acromycin Intravenous 250 mg, Acromycin Topical ointment 14.2 gms. and Acromycin Soluble tablets, was approved finally by the said order dated 20.8.1979. Against the order of the Assistant Collector of Central Excise dated 20.8.1979 in respect of Hetrazan Tablets, Caricide Tablets (Vet) and Acromycin Intramuscular Injection, the appellants filed appeal before the Appellate-Collector of Central Excise, Bombay. By his order-in-appeal No. A-2175/BD-868/82 dated 2.2.1983, the Collector of Central Excise (Appeals), Bombay held that the Hetrazan Tablets and Caricide Tablets (Vet) manufactured by the appellants were eligible for concessional rate of duty at 2 1/2% ad valorem under Notification No. 116/69-CE dated 3.5.1969 as amended. He, however, held that Acromycin Intramuscular Injection was not eligible for the concessional rate of assessment under the above notification.
In the meantime, on 19.9.1977, the appellants filed a consolidated refund claim for Rs. 8,15,236.04 in respect of excess duty paid by them on their medicines with effect from 10.5.1977, i.e. the date from which the amending Notification No. 89/77-CE dated 10.5.1977 was effective. The Assistant Collector of Central Excise rejected the claim. The appeals filed before the Appellate-Collector of Central Excise against the rejection order passed by the Assistant Collector were also rejected by the Collector of Central Excise (Appeals) by the impugned order. Hence the present two appeals before us.
4. We heard the arguments of Shri R.G. Seth, the learned advocate for the appellants and Shri A.S. Sunder Rajan, the learned JDR for the respondent. The learned advocate has stated that appeal No E/2182/84-C relates to refund claim for Rs. 1,78,774.86 for the period from 10.5.1977 to 7.7.1977 in respect of the following products:
Acromycin Capsules, Acromycin Eye & Ear Oil Suspension, Acromycin Eye and Ear Ointment 3.5 gm.
Acromycin Intravenous 250 mg. Acromycin Topical Ointment 14.2 gms. and Acromycin Soluble Tablets, as mentioned at (E) of paragraph 2 of the Order-in-appeal No. L-637/641/BD/114-118/84 dated 7.6.1984. He has also stated that appeal No. 2192/84-C relates to Hetrazan Tablets and Caricide Tablets as mentioned in (d) of paragraph 2 of the impugned order. He has argued that the six products mentioned at paragraph 2 (E) of the impugned order were not the subject matter of appeal before Shri B.K. Aggarwal, Collector of Central Excise (Appeals), Bombay who passed the order-in-appeal No. A-2175/BD-868/82 dated 2.2.1983 allowing concessional rate of duty under Notification No. 116/69-CE as amended in respect of Hetrazan Tablets and Caricide Tablets (Vet) and disallowing the concession in respect of Acromycin intramuscular injection. The question for filing any appeal before the Collector (Appeals), Shri B.K. Aggarwal in respect of those six products did not at all arise as the classification list No. 5/77 filed by the appellants claiming concessional rate of duty at 2 1/2% under the aforesaid Notification for those six products was approved by the Assistant Collector of Central Excise by his order dated 20.8.1979. Therefore, the rejection of the refund claim in respect of these six products was erroneous. The learned advocate has also argued that so far as the claim for refund amounting to Rs. 1,68,633.42 in respect of Hetrazan Tablets 10s and Caricide Tablets 10s (Vet) for the period from 10.5.1977 to 7.7.1977, which is the subject matter of present appeal No. 2192/84-C, is concerned, Collector of Central Excise (Appeals), vide the impugned order, has allowed the refund provided the duty was assessed provisionally. The argument of the learned advocate is that the Collector (Appeals) should not have passed this conditional order as the appellants filed their refund claim on 19.9.1977 and not on 26.2.1979 as indicated by the Collector (Appeals) in the impugned order against each item of refund claim. He has drawn our attention to the refund claim dated 19.9.1977 and the subsequent correspondence exchanged between the appellants and the Central Excise authorities, copies of which have been filed at pages 22 to 38 of the paper book filed by the appellants. He has also drawn our attention to the copy of classification list No. 5/77 (pages 1 and 2 and pages 20-21 of the paper book), classification list No. 2/77 (pages 18 and 19 of the paper book), order-in-original No. MP/1/79-CE dated 20.8.1979 passed by the Assistant Collector of Central Excise (pages 3 & 4 of the paper book) and the order-in-appeal No. A-2175/BD/868/82 dated 2.2.1983 passed by Shri B.K. Aggarwal, Collector of Central Excise (Appeals), Bombay (pages 15 to 17 of the paper book). He has argued that the refund claim was filed well within the prescribed time-limit and was not barred by limitation. The Collector of Central Excise (Appeals), vide his impugned order, has allowed the refund in respect of Hetrazan Tablets and Caricide Tablets in respect of the period from 10.5.1977 to 7.7.1977 conditionally provided assessment was made provisionally although he has not given any finding about the time bar of the claim. The learned advocate has prayed that the impugned order of the Collector of Central Excise (Appeals) may be set aside and both the appeals filed before us should be allowed with consequential relief. The learned JDR has very fairly conceded that the refund claim was not time barred.
5. We have considered the case records and the arguments of the learned advocate. From the Order-in-original No. MP/1/79-CE dated 20.8.1979 passed by the Assistant Collector of Central Excise, Surat, we find that the classification list in respect of the six products which art the subject matter of appeal No. ED/SB/2182/84-C was approved by the Assistant Collector of Central Excise, finally, allowing the concessional rate of 2 1/2% d-valorem duty under Notification No. 116/69-CE dated 3.3.1969 as amended by the notification No. 89/77-CE dated 10.5.1977. The impugned order of the Collector of Central Excise (Appeals) in so far as it relates to refund claim in respect of these six products, viz, Acromycin Capsules, Acromycin Eyes Ear oil suspension, Acromycin Eye & Ear Ointment 3.5gm, Acromycin Intravenous Injection 250mg., Acromycin Topical Ointment 14.2 gms. and Acromycine soluble Tablets, is totally mis-conceived. The benefit of concessional rate of assessment under the aforesaid notification was allowed by the Collector of Central Excise (Appeals) in respect of Hetrazan Tablets 10s and Caricide Tablets 10s (Vet). In the impugned order, the Collector (Appeals) has mentioned the date of refund claim as 26.2.1979, which is erroneous. The copies of the refund claim dated 19.9.1977 and the subsequent correspondence exchanged between the Central Excise authorities and the appellants clearly show that a consolidated refund claim for Rs. 8,15,236.08 was filed by the appellants as early as on 19.9.1977, which is well within the prescribed time-limit. The learned JDR has also very fairly conceded that the claim for refund was not time-barred.
6. In the circumstances, the appellants are entitled to the refund of excess duty paid on Hetrazan and Caricide Tablets and the six Acromycin products listed (supra), which are the subject matters of these two appeals before us. We, therefore, set aside the impugned order in so far as it relates to these eight products and allow both these appeals with consequential refund of excess duty to the appellants.
7. Appeals are allowed.