Customs, Excise and Gold Tribunal - Calcutta
Albert David Limited vs Commissioner Of Central Excise, ... on 17 September, 2001
JUDGMENT
K.K. Bhatia
1. The appellants M/s Albert David Limited, Calcutta manufactured medicament falling under heading 30.03 of the Central Excise Tariff Act, 1985. They were issued a Show-cause Notice dated 9.12.1993 by the Collector of Central Excise, Calcutta-I in which it is alleged that they abused the provisions of exemption Notification No. 48/77-CE dated 1.4.1977, as amended with the intent to evade Central Excise duty during the period from 16.1.87 to 28.2.90 inasmuch as they removed from their factory clinical samples of medicament without fulfilment of the condition for availing exemption as stipulated in proviso (iii) of the said Notification viz." That the samples are packed in a form distinctly different from regular trade packing and each smallest packing is clearly and conspicuously marked 'physicians samples not to be sold". Therefore they were called upon to show cause why the central excise duty amounting to Rs. 11,29,764.00 leviable on such samples during the period 16.1.87 to 28.2.90 should not be demanded from them under the proviso to Section 11A(1) of the Central Excise Act, 1944 as they suppressed the fact that the clinical samples were not packed in form distinctly different from regular trade packing with mala fide intention to evade duty. They were also called upon to show cause why penalty should not be imposed either under Rule 173Q(1) of the Central Excise Rules 1944.
2. On considering the reply of the party, the Commissioner of Central Excise, Calcutta vide his order dated 28.11.2000 confirmed the duty of Rs. 6,43,575.00 pertaining to the demand for the period from 1.12.88 to 28.2.90 (concerning a period of 5 years only) in terms of Rule 9(2) of the Central Excise Rules, 1944 read with proviso to Section 11A of the Central Excise Act, 1944. He further imposed a penalty of Rs. 6.50 lac on the party u/r 173Q.
3. The present appeal is against the above order of the Commissioner. We have heard Shri S. Chakraborty, ld. Authorised Representative of the appellants and Shri V.K. Chaturvedi, ld. SDR for the respondent. Learned Representative of the appellants submits that during the relevant period they had manufactured the following products:
1. CYPL-180 ml.
2. ANAFLAM SUSPENSION - 50 ml.
3. ALFUMET SUSPENSION - 50 ml.
which were identical with trade packs of CYPL - 200 ml.
ANAFLAM SUSPENSION - 60 ml. and ALFUMET SUSPENSION - 60 ml.
AND
4. LECLYTE SCHET - 10 gms.
5. RANIAL STRIPS - 2 TABS + 4 TABS
6. ALFAM STRIPS - 2 TABS + 4 TABs."
4. The learned Representative submits that he is not contesting the case in respect of the products listed at Serial Nos. 1, 2 and 3 above since the clinical samples of these products cleared by them from their factory wee not packed in a form distinctly different from regular trade packing. he very fairly submitted that the Tribunal in the case of Indian Drugs & Pharmaceutical Ltd., Hyderabad v. C.C.E., Hyderabad - 1987 (31) ELT 829 (T) has held that merely packing of products under the smaller contents in itself would not be sufficient enough to categorise them as to having been packed in form distinctly different from the regular trade packing. In respect of other products mentioned at Serial Nos. 4 to 6 above the appellants are contesting the case on merits. The whole of the demand is however contested on time-bar. It is stated that the party had submitted the C/Lists along with packing/strip covers and claimed exemption under the Notification. Such packing/strip covers in the case of each product were bearing the inscription," Physician samples not to be sold". the appellants have also filed the copies of C/Lists filed by them from 25.8.87 to 2.5.89 along with photocopies of the outer covers of the pickings which bear the above inscription. It is contended that these C/Lists were duly approved by the Departmental Authorities and therefore the demand of duty cannot be confirmed by invoking the extended period since there is no suppression of facts. For this the learned representative of the appellants also relies on the same case-law in the case of M/s IDPL (supra) in which the Tribunal has held that the demand for the extended period was not be enforced in view of the fact that the appellant had filed C/Lists in respect of the physician samples claiming the benefit of exemption under Notification, same were duly approved and they had also filed RT-12 return and no objection was raised thereon.
5. Shri V.K. Chaturvedi, learned SDR for the Revenue reiterated the findings arrived at by the Commissioner.
6. We have carefully considered the submissions made before us. As already stated that the appellants are not contesting their case on merits in respect of the products, viz. CYPL - 180 ml. Anaflam Suspension - 50 ml. and Alfumet suspension - 50 ml. However demand in resect of the other products is contested on merits and whole of the case is contested on time bar. It is argued that C/Lists in respect of these products filed by them right form 1987 claiming the exemption under Notification which were duly approved by the concerned Central Excise Authorities. All these C/Lists were accompanied by the outer covers/packing superscribed with the inscriptions, "Physician samples not to be sold". It is contended that these C/Lists were duly approved by the concerned Central Excise Authorities and no objection was taken in non-fulfilling of the contents of the exemption Notification No. 48/77-CE. On this ground it is contended that demand is time-barred.
7. On perusal of the record it is observed that the appellants had raised the contention before the Commissioner that the C/Lists claiming the exemption Notification No. 48/77-CE were filed before the Central Excise Authorities and they were duly approved and in vide of this matter it was pleaded that the demand was time-barred. It is observed from the order of the Commissioner that he has not recorded any finding on this submission of the party. He has only stated that the notices is said to have submitted the C/Lists declared for availing the benefit of exemption under Notification No. 48/77-CE dated 1.4.77 but did not follow the contents of the Notification and thus contravened the provisions of law as discussed supra with the intent to evade central excise duty and thus the central excise duty amounting to Rs. 6,48,575.00 for the period 1.2.88 to 28.2.90 should be paid by the assessee. We find from this observation in the order of the Commissioner that he has not considered specific submission of the part that the strip cover/packing of the samples in respect of which the exemption was claimed were also submitted along with C/Lists. This strip cover/packing bore the marking "physician samples not to be sold". In our view this submission of the party is required to be considered by the original authority and his finding recorded. There is also no clear findings in respect of the products viz Leclyte sachet - 10 gms., Ranial strips - 2 Tabs + 4 Tabs. and Alfam strips - 2 Tabs. + 4 Tabs as to with what regular pickings they were identified with. In view of our above observations, the matter calls for remand to the original authority for de-novo consideration and recording of this findings afresh. We, therefore, set aside the order passed by the Commissioner and remand the matter in the above terms. The appellants shall be afforded a reasonable opportunity of hearing before taking a final view in the matter .
8. The appeal is thus allowed in the above terms.
(Pronounced)