Customs, Excise and Gold Tribunal - Mumbai
Cce And Cus. vs Euphoric Pharmaceuticals Pvt. Ltd. on 7 January, 1998
Equivalent citations: 1998(101)ELT157(TRI-MUMBAI)
ORDER K.S. Venkataramani, Member (T)
1. In this appeal the issue is whether single ingredient formulations of Rifampicin is required to pay duty at the material time namely February, 1989 to March, 1989 in view of the fact that Rifampicin was taken out of the 1st Schedule and brought into the IInd Schedule in the Drugs (Price Control) Order, 1987 and also in view of the Notification 44/90 issued under Section 11C of the Central Excise Act, 1944. The Respondents did not pay duty on the single ingredient formulations of Rifampicin because of Notification 29/88 according to which all formulations, based on the list of Bulk Drugs specified in the First Schedule to the Drugs (Price Control) Order, 1987 either individually or in combination with other drugs specified in the First Schedule attract nil rate of duty as per Serial No. 1 to the notification. Rifampicin was taken out of the First Schedule and brought under Second Schedule by issue of order FO/82/(E), dated 18-1-1989 which meant that all formulations based on Rifampicin either individually or in combination with other bulk drugs thus became subject to duty from 18-1-1989. Show cause notice was issued in the case to Respondents herein for the period February, 1989 to March, 1989 demanding duty in consequence of the' shifting of the Rifampicin from First Schedule to Second Schedule. The jurisdic-tional Asstt. Commissioner of Central Excise by order dated 10-12-1991 held that formulations of Rifampicin was not covered by the Section 11C Notification 44/90. According to this notification Rifampicin and formulations of Rifampicin with Isoniozied (INH), duty thereon need not be collected during the period 18-1-1989 to 15-5-1989 because of past general practice in the Collec-torates. The Asstt. Commissioner took the view that what was covered by the 11C notification was formulation of Rifampicin with INH only and no other formulations of Rifampicin. The Commissioner (Appeals), however, set aside the Asstt. Commissioner's order holding that Notification 44/90 is to be understood as covering all formulations of Rifampicin.
2. Shri Kumar, the ld. DR for the appellant Commissioner referred to the grounds of appeal and contended that a perusal of the wording of the Notification 44/90 would clearly indicate that the notification covered Rifampicin as a Bulk Drug and formulations thereof with INH and the goods in question are not formulation of Rifampicin with INH and therefore on a strict interpretation of the notification going by its plain wordings the Commissioner (Appeals) has gone wrong by extending the coverage of the notification.
3. Respondents are absent and have asked for decision on merits. On a careful consideration of the submissions we are inclined to agree with the ld. DR that a perusal of the Notification 44/90 clearly shows that the waiver of duty between January, 1989 and March, 1989 granted by the notification is only for Rifampicin and formulations of Rifampicin with INH. It is not the case of the Respondents that the goods in question are formulations of Rifampicin with INH. The waiver specified by the plain wordings of the notification is confined to only this formulation of Rifampicin with INH. In such a situation there is no justification for taking a broader view as has been done by the Commissioner (Appeals) in the impugned order as the wordings of the notification clearly confines formulations of Rifampicin to only that formulation of the material with INH. The Commissioner (Appeals) has based his reasoning on the Notification 29/89 as it exist prior to the shifting of the Rifampicin from First Schedule to Schedule II and has read the intention of issue of Section 11C notification which we find is not warranted by the plain wordings of the notification issued under Section 11C. We therefore set aside the impugned order and allow the appeal.