Custom, Excise & Service Tax Tribunal
Yes vs Represented By : Shri G P Thomas (Ar) on 13 August, 2014
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad COURT Appeal No. : E/667, 664, 665/2008 Arising out of : OIA No. KKS/94-95/DAMAN/2008 dtd 10.3.2008 Passed by : The Commissioner (A), CCE&ST., Daman For approval and signature : Mr. H.K. Thakur, Hon.ble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Appellant (s) : CCE&ST., Daman Represented by : Shri G P Thomas (AR) Respondent (s) : 1. M/s Advance Remedies Pvt Ltd
2. M/s Golden Cross Pharma Pvt Ltd
3. M/s Healing Cross Pharma Pvt Ltd Represented by : Shri Anand Nainavati (Adv.) CORAM :
Mr. H.K. Thakur, Hon.ble Member (Technical) Date of Hearing / Decision : 13/08/2014 ORDER No. A/11556-11558/2014 dtd 13.8.2014 Per : Mr. H K Thakur;
These appeals had been filed by the respondents M/s Advance Remedies Pvt Ltd, Golden Cross Pharma Pvt Ltd and Healing Cross Pharma Pvt Ltd against OIA No. KKS/94-95/DAMAN/2008 dated 10.3.2008 and OIA No. KKS/97-98/DAMAN/2008 dtd 10.3.2008. As the issues involved in these appeals are common, therefore, these appeals are being taken up for disposal under this common order.
2. The brief facts involved in these proceedings are that the respondents are manufacturers of pharmaceutical products falling under Chapter 30 of the Central Tariff Act 1985 and availed cenvat credit under Cenvat Credit Rules 2002-04. During the year 2002-2005 respondents did job work of M/s Cipla Ltd and manufactured Pharma products on loan licensees basis. Certain bulk drugs received by the respondents from M/s Cipla Ltd were cleared by M/s Cipla Ltd under provisional assessment. Show cause notices were issued to the 3 respondents to deny cenvat credit availed for such duty which was paid in excess on the ground that such excess duty paid was not entitled to cenvat credit after finalisation of provisional assessment. Cenvat credit availed by the respondents were rejected by the Adjudicating Authority alongwith imposition of penalty under OIO No. 24/Dem/ADJ/Addl/2007 dated 28.9.2007. First Appellate Authority upheld the denial of cenvat credit but set aside the penalties imposed upon the respondents. Against the orders of the First Appellate Authority, revenue has filed these appeals on the ground that penalties were correctly imposed upon the respondents by the Adjudicating Authority.
3. Shri G P Thomas (AR) appearing on behalf of the Revenue argued that since the extended period demand has been upheld there was no reason for setting aside the penalties imposed upon the respondents. Ld AR thus strongly defended the orders passed by the Adjudicating Authority.
4. Shri Anand Nainavati (Adv.) appearing on behalf of the respondents argued that on similar set of facts this very Bench in the case of M/s Jupiter Remedies Pvt Ltd and others vs. CCE., Vapi in Appeal No. E/808, 809, 666/2008 (Order No. A/2285-2287/WZB/AHD/08 dt 1.10.2008) held that cenvat credit was correctly admissible and that order passed by the Commissioner (Appeals) setting aside the penalties imposed upon the assessee was correct. It was his case that the appeals filed by the Revenue on the issue of imposition of penalty has been rejected by this Bench in the above order on identical facts. It is also his case that on the same issue of penalty, appeals filed by the Revenue should be rejected. Ld AR confirms that the facts involved in these appeals are identical to the facts involved in Appeals No E/808,809,666/2008.
5. Heard both sides and perused the case records. The issue involved in the present appeals filed by the Revenue is that penalties were required to be imposed upon the respondents when the duty demand was confirmed against the respondents. It is observed from the order dtd 1.10.2008 passed by the this Bench, in the case of M/s Jupiter Remedies Pvt Ltd and others vs. CCE., Vapi (Appeal No.E/808, 809, 666/2008) that it was held by this Bench that cenvat credit was correctly availed by the appellants and the appeals of the appellants M/s Jupiter Remedies Pvt Ltd., and M/s Advance Remedies Pvt Ltd was allowed and departmental appeal on imposition of penalty was rejected.
6. It is observed that order dated 1.10.2008 passed by this Bench was also with respect to same OIA No. KKS/94-95/Dem/2008 dtd 10.3.2008 passed by the First Appellate Authority. The same OIA dtd 10.3.2008 is the subject matter of Appeal No. E/667/2008 filed by the Revenue. Further, under order dated 1.10.2008 passed by this Bench, appeal filed by Revenue regarding imposition of penalty upon the assessee was rejected. As on the same facts of the issue involved, the appeals filed by the Revenue have been rejected under order dated 10.3.2008 passed by this Bench, there is no reason as to why a different view should be taken in these appeals filed by the Revenue. Accordingly, appeals filed by the Revenue are rejected.
(Operative part pronounced in the Court) (H.K. Thakur) Member (Technical) swami ??
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