Customs, Excise and Gold Tribunal - Mumbai
Farmson Pharmaceuticals Gujarat Ltd. vs Commissioner Of Central Excise And ... on 23 April, 2001
Equivalent citations: 2001(76)ECC489
ORDER G.N. Srinivasan, Member (J)
1. This is an appeal filed by the appellants against the decision of the Commissioner, Central Excise & Customs (Appeals) made in Order-in-Appeal No. CS-80-DRD/96 dated 10.4.96 confirmed the order made by the Asstt. Collector, Vadodara made in Order-in-Original. The Asstt. Collector confirmed the demand of Rs. 53,34,265 on the ground that end use certificate has not been given.
2. The appellants are a company manufacturing bulk drugs namely Paracetamol IP classifiable under sub-heading 2907.90. The appellants filed a classification list 88/91 effective from 25.7.91 claiming classification under sub-heading 2907.90 and also claimed concessional rate of duty at 5% ad valorem in terms of Notification 31/88 dated 1.3.88. The CL was sent back with the remark "subject to end use certificate." It is the contention of the assessee that the notification did not stipulate any condition whatsoever for production of end use certificate in respect of the product in question in order to enjoy concessional rate. A show cause notice dated 23.3.92 was issued by the authorities demanding duty for goods cleared for the period September 1991 to February 1992 on the ground that the end use certificate is required to be produced which was mentioned in the classification. The appellants filed their reply dated 21.4.92 reiterating their above said contention. The Order-in-Original was passed by the Asstt. Collector confirming the demand and the Collector (Appeals) confirmed the said order. Hence the appeal.
3. Shri J.C. Patel Advocate appeared for the assessee and Shri J.M. George, DR appeared for the department. Mr. Patel argued that the production of end use certificate cannot be a criterion for allowability of the exemption under notification referred to. He states that the product in question comes within Schedule 2 of Drug and Price Control Order and therefore the insistence of end use certificate by the department is wrong. He also cites the judgment of the Tribunal in two cases namely Calibre Chemicals v. CCE and CCE v. Maize Products . The Ld. DR would adopt the reasoning.
4. We have considered the rival submissions. In the order in appeal, the Commissioner has held as follows:
I have examined the submissions made by the appellants. In the instant case, availment of concessional rate of duty under Notification 31/88, dated 1.3.88 was approved by the Department subject to production of end use certificate indicating use of the bulk drugs for the purpose specified in the DPCO. Since the appellants have not filed an appeal against the said order, the condition subject to which the approval of the classification was granted has become binding on the appellants. The certificates produced by them are general statements from three of their buyers indicating use of the Paracetamol/Zadine Maxi tablets. As the Asstt. Collector has correctly observed the said certificates are not acceptable as no details have been furnished in these certificates to link them up with the clearances covered in the show cause notice.
5. The case cited by the Ld. Advocate, Mr. Patel in Calibre Chemicals supra refers to the judgment of the Bombay High Court in Citric India Ltd v. UOI . The said goods also referred to the Board circular dated 30.3.94. Following the said judgment of the Bombay High Court and referring to the above mentioned Board circular, we have to hold that the end use certificate for purpose of claiming benefit of exemption under the Notification 31/88 is not necessary. We therefore allow the appeal setting aside the lower authorities orders.
6. Appeal stands allowed with consequential relief, if any, according to law.