Custom, Excise & Service Tax Tribunal
M/S Torrent Pharmaceuticals Ltd vs C.C.E. & S.T.-Vadodara-I on 5 August, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ****
Appeal No : E/1466/2004 (Arising out of OIA-COMMR-A-/13/VDR-I/2004 Dated 28/01/2004 passed by Commissioner (Appeals) of Central Exise, Customs and Service Tax-VADODARA-I) M/s Torrent Pharmaceuticals Ltd : Appellant (s) Vs C.C.E. & S.T.-Vadodara-I : Respondent (s) Represented by:
For Appellant (s) : Shri S. J. Vyas, Advocate For Respondent (s) :Shri Govind Jha, AR For approval and signature: Mr. H.K. Thakur, Honble Member (Technical) 1.
Whether Press Reporters 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 the 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
CORAM:
MR. H.K. THAKUR, HONBLE MEMBER (TECHNICAL)
Date of Hearing/Decision:05.08.2015
Order No. A/11179 / 2015 Dated 05.08.2015
Per: H.K. Thakur
This appeal has been filed by the appellant with respect to OIA No. Commr(A)/13/VDR-I/2004 dated 23.01.2004 passed by Commissioner (Appeals), Vadodara as first appellate authority. Under this OIA dated 23.01.2004 first appellate authority has rejected the claim of the appellant by holding that Revisonery Authority has remanded the rebate claim of the appellant to be considered as a refund claim under Rule 173 L of the Central Excise Rules, 1944. In remand proceedings learned first appellate authority has rejected the refund claim of the appellant as time barred treating the same as refund of Rule 173 L of Central Excise Rules 1944, readwith Section 11 B of the Central Excise Act, 1944.
2. Sh. S.J. Vyas (Advocate) appearing on behalf of the appellant argued that the goods exported by the appellant were manufactured by M/s torrent Gujarat Biotech Ltd. Vadodara (TGBL) and cleared the goods under their invoice No. 1002 Dated 21.04.1998 with the remark NIL rate of duty as duty was earlier paid vide invoice No. E/230 dated 20.09.1997 on debit from RG-23C PL-II (entry No. 281 dated 20.09.1997). That between 20.09.1997 to 21.04.1998 goods were returned by TGBL under Rule 173H and repacked for final export by the appellant. It is the case of the learned advocate that Rule 173 L refund claim has to be filed only by the re-manufacture of the goods returned and not by the merchant exporter. It was his case that their case was rebate of duty claimed by the merchant exporter who is not the manufacture of goods. He relied upon the case law of Banglore CESTAT Sun-Ship Ltd. vs Commissioner of Central Excise, Hyderabad-I [2004 (169) E.L.T. 33 (Tri.-Bang.)].
3. Sh. Govind Jha, (AR) appearing on behalf of the Revenue made the Bench go through OIO dated 06.08.2013 to argue that there is a difference in the quantity of goods brought back by TGBL for reprocessing and finally exported by appellant Torrent Pharmaceuticals Ltd. It was his case that repacking of medicines amounts to remanufacture and that it was a case of refund under Rule 173 L of the erstwhile Central Excise Rules, 1944. Learned AR thus defended the order passed by the lower authorities.
4. Heard both sides and perused the case records. Appellant in the present proceedings is a merchant exporter and not a person who undertook first manufacture and subsequent processing of the returned goods. Appellant is not concerned as to what activities are undertaken by TGBL. Appellant will be interested to get rebate claim of the duty paid on 20.09.1997 before the returned goods were allowed to be cleared under Rule 173 H of the erstwhile Central Excise Rules 1944, on the documents relating to export of goods. Rule 173 L of the erstwhile Central Excise Rules, 1944 can be followed only by the manufacture/re-manufacture of the goods and not by the merchant exporter. Revenue did not challenge the second clearance made by TGBL after re-processing holding that duty was required to be paid by TGBL for the second time and get refund under Rule 173 L for the earlier duty paid. Under the present factual matrix appellants claim can not be considered to be a refund claim of Rule 173 L. As the main dispute agitated by the appellant is that their claim is one of rebate and not refund under Rule 173 L of the Central Excise Rules, 1944, this Bench agree with the contention of the Learned Advocate that it is a case of rebate and CESTAT does not have the jurisdiction to entertain this appeal.
5. Appeal filed by the appellant is disposed of as an appeal filed without jurisdiction. Appellant is at liberty to file appeal with the appropriate authority.
(Operative portion of the order pronounced in Court) (H.K. Thakur) Member (Technical) govind 4