Customs, Excise and Gold Tribunal - Mumbai
Orex Pharma Pvt. Ltd. vs Commissioner Of C. Ex. on 22 January, 2003
Equivalent citations: 2003(154)ELT425(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. The notice issued to the appellant proposed to deny to it the benefit of the exemption contained in Notification 1/93 for the financial year 1995-96 on the ground that the aggregate value of clearance in the preceding financial year had exceeded Rs. 3 crores, contravening one of the conditions subject to which such exemption was available. In reply, the assessee contended that if the value of the goods which it cleared and received back in terms of Rule 173H were taken into account, the value of the clearances in the preceding year would not exceed Rs. 3 crores and entitled to exemption. The Additional Commissioner, whose order has been confirmed by the Commissioner (Appeals), has not accepted the submission and held that the benefit of the exemption was not available. Hence this appeal.
2. The appellant is absent and unrepresented and filed written submissions. We have studies these and heard the departmental representative.
3. The sole ground in the appeal is that sale takes place only when there is transfer of goods from one person to another in the ordinary course of trade or business and hence if the assessee cleared the goods which had been rejected and returned to it, they have not been sold. We are not concerned with the question as to whether the goods have been sold or not. The notification refers to the aggregate value of clearance from the factory; that value would include clearance by any manner whether by sale, gift, deeds, mortgage etc. It cannot be disputed that the goods in question were cleared after payment of duty. The fact that they were subsequently returned does not have the effect of nullifying such clearances. Doubtless, if on the second occasion the process to which they were subjected did not amount to manufacture and no duty was paid, the question may arise as to whether the value of such clearances also has to be taken into account. It may then be argued that there will not be clearances of the goods as they were not a result of manufacture. We are however not required to address this question because that is not an issue before us. What is in issue before us is the inclusion of the goods initially cleared on payment of duty. There can be no doubt when they were certainly clearances within the meaning of the notification.
4. The written submission that has been submitted consists of copies of decisions of the Tribunal. The decision in Oxide (India) Pvt. Ltd. v. CCE -2001 (128) E.L.T. 490 holding that value of deemed export not to be included in the value of clearances of Notification 1/93. It is not relevant because we are not concerned with deemed export. The decision in Manohar Brothers (Capacitors) (P) Ltd. v. CCE - 1999 (107) E.L.T. 813 holding that when the goods once having been cleared on payment of duty are brought back for inspection, their value after their removal after such inspection is not to be taken into account, again is not relevant. The decision in Reliance Storage Energy & Systems Pvt. Ltd. v. CCE - 2001 (131) E.L.T. 210 holding that repairing, reconditioning or remaking does not amount to manufacture is entirely irrelevant. The decision in Kusum Kemicals Private Limited v. CCE 2002 (144) E.L.T. 346 holding that when the goods, after clearance are received back under Rule 173L and once again cleared, both sets of clearances need not be taken into account, again is not an issue before us.
5. We therefore see no ground for interference.
6. Appeal dismissed.