Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Unknown on 4 October, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT-II
Application No.E/EH/1282/10
Appeal No.E/1835/09
Arising out of OIA No.Commr.(A)/253/VDR-I/2009, dt.28.10.09
Passed by: Commissioner of Central Excise & Customs (Appeals), Vadodara
For approval and signature:
Honble Mrs. Archana Wadhwa, Member (Judicial)
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant/s M/s. Ronald Pharmaceuticals Pvt. Ltd.
Represented by Shri Prakash Shah, Adv
Vs.
Respondent/s CCE Vadodara
Represented by Shri Avinash Thete, SDR CORAM:
MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing :04.10.10 Date of Decision:04.10.10 ORDER No. /WZB/AHD/2010 Per: Archana Wadhwa:
After hearing both the sides we find that Commissioner (Appeals) has dismissed the appeal for non compliance with the stay order passed by him directing the applicant-appellant to deposit an amount of Rs.13 lakhs out of the total duty of Rs.25,93,505/- confirmed against them. The said demand stands confirmed in respect of physician samples cleared by the applicant on payment of duty by adopting the assessable value as 110% of the cost of the same, whereas the Revenues contention is that the value of the physicians samples are required to be adopted on the basis of pro-rata value of the routine packs of the medicines.
2. We find that the issue on merits is no longer res-integra and stands settled against the appellant by the Larger Bench decision in the case of Cadila Pharmaceuticals Ltd. Vs. CCE Ahmedabad reported in 2008 (232) ELT 245 (Tri. LB). However the learned advocate assails the impugned demand on limitation by submitting that the show cause notice dated 01.03.08 was issued for the period April 2005 to June 2007. However the second show cause notice issued on 13.07.08 was within the limitation period and they have deposited the amount involved in the second show cause notice in question.
3. Learned advocate also draws our attention to the recent decisions in the case of Marsha Pharma Pvt. Ltd. Vs. CCE Vadodara reported in 2009 (248) ELT 687 (Tri. Ahmd.) held subsequently in the case of Alembic Ltd. Vs. CCE Vadodara order No.A/594/WZB/AHD/10 & S/521/WZB/AHD/10 dated 31.05.10 in support of his plea that as there was confusion in the field by various decisions of the Tribunal and ultimately the issue was settled by referring the same to the Larger Bench, the appellant cannot be held guilty of any suppression or misstatement with an intend to evade payment of duty.
4. We agree with the learned advocate on the above issue of limitation. Accordingly the condition of pre-deposit of the entire duty and penalty stands waived. Further as the appeal has not been decided by Commissioner (Appeals) on merits, we set aside the impugned order and remanded the matter to Commissioner (Appeals) for decision on merits without insisting on any pre-deposit. Early hearing application, stay petition as also appeal get disposed off in above manner.
(Dictated & Pronounced in Court)
(B.S.V. Murthy) (Archana Wadhwa)
Member (Technical) Member (Judicial)
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