Custom, Excise & Service Tax Tribunal
M/S.Oscar Remedies (P) Ltd vs Cce, Panchkula on 24 July, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
Date of Hearing/Decision:24.07.2013
Excise Appeal No.729/2012-EX(DB)
(Arising out of Order-in-Appeal No.560/BK/PKL/2011 dated 30.12.2011 passed by the Commissioner (Appeals), Central Excise, Delhi-III).
M/s.Oscar Remedies (P) Ltd. .Appellant
Vs.
CCE, Panchkula ..Respondent
Appearance: Rep. by Shri N.L. Jangir, Advocate for the appellant.
Rep. by Shri Sanjay Jain, DR for the respondent.
CORAM : Honble Shri D.N. Panda, Judicial Member Honble Shri Rakesh Kumar, Technical Member Final Order No.57196/2013 Dated: 24/07/2013 Per. D.N. Panda:
Pursuant to the directions of Honble High Court of Punjab & Haryana in CEA No.48 of 2012 on 15/01/2013 noticing materials facts as under, this appeal was taken up for disposal:-
The appellant is engaged in the manufacturing of pharmaceutical products under their own brand name as well as manufacturing the medicaments on which the brand name of some other person is affixed. The assertion of the appellant is that the medicaments bearing the brand name of the appellant-company are cleared without payment of duty by availing the benefit of Notification No.8/2003-CE dated 1.3.2003 and that the appellant is not availing any Cenvat credit of duty paid on inputs used in or in relation to manufacture of such medicaments. But the appellant is claiming benefit of Cenvat credit of duty paid on inputs used on the goods manufactured under the brand name of some other person. It is contended that the question of duty in these circumstances has been examined by the Tribunal for the subsequent period in the assessees own case in an order dated 13.05.2010, wherein the judgement in Ramesh Food Products case (supra) was considered and demand of duty denying the benefit under the notification was found to be unsustainable [Emphasis supplied].
2. Ld. Counsel submits that when in the own case of the appellant i.e. in Appeals No.E/775 & 820 of 2008, E/895, 897 & E/981 of 2008, disposed vide Final Order No.291-295/2010-EX dated 28.04.2010 distinguishing the judgement of Ramesh Food Products reported in 2004 (174) ELT 310 (SC) its appeal was allowed, there cannot be difference in the present appeal.
3. Although the matter is listed for pre-deposit order, in view of the facts recorded by Honble High Court of Punjab & Haryana as set out herein before and the facts stated by the ld. Advocate as well as on perusal of the order passed by the Tribunal on 28.4.2010 in the case of the same appellant, following consistency, the appeal itself is allowed.
4. It is learnt from the Revenue that the order dated 28.04.2010 passed by the Tribunal is neither stayed nor reversed by the Higher Court.
5. It is considered proper to reproduce relevant portion of the order dated 28.4.2010 of Tribunal for appreciation of the proposition of law which has resolved the controversy:-
It is pertinent to note that the matter in Ramesh Food Products was relating to the period prior to 1991-1992. At the relevant time, there was no provision under the Modvat Scheme, whereby the manufacturer could simultaneously claim the Modvat benefit in relation to non-exempted goods and maintain separate accounts in relation to the inputs procured for utilization in exempted and non-exempted goods similar to the one which is found incorporated in Rule 12 (2 & 3) of the Cenvat Credit Rules, 2004. In other words, the manufacturer had to opt either to avail the benefit of Modvat Scheme and forego the other benefits or in case, the manufacturer decides to avail the other benefits than to forego the benefit of Modvat Scheme. Besides, it is also to be noted that Notification No.175/86-CE dated 1.3.86 itself in the preamble clearly provided that in case the assessee choose to opt for the benefit of Modvat Scheme, he would not be entitled for the benefit under scheme and he will have to pay the amount calculated @ 10% Advalorem of the value of the products cleared. It was in the background of those facts that the ruling of the Apex court in Ramesh Food Products has to be understood. It is settled law that the ratio of a decision cannot be understood unless one takes inot account the facts of the case and the point which arises for consideration in the matter and the decision thereon. A judgement has to be understood as to what it decides and the facts in which the decision is taken. The ratio cannot be culled out ignoring the facts of the case. Taking into consideration the facts of the matter in Ramesh Food Products case and bearing in mind, the pre-condition for availing the benefit of the Notification No.175/86-CE dated 1.3.86, it is abundantly clear that the manufacturer thereunder was given clear option to choose between the two benefits, one under the notification and another under the Modvat Scheme and not to avail both the benefits simultaneously. That is not the case under Notification No.8/2003-CE dated 1.3.2003. That is not the case under Notification No.8/2003-CE dated 1.3.2003. There is no such restriction imposed under the said notification. Rather plain reading of Clause 3, 3A and 4 of the said notification would disclose that the manufacturers are not debarred form availing the benefit under the said notification in relation to the goods other than the goods which are excluded from the benefit of the said notification while simultaneously seeking to avail the benefit of Cenvat credit or Modvat credit in relation to such excluded goods provided they are cleared on payment of full duty. The notification being abundantly clear in this regard, in our considered opinion, the Authorities below erred in applying the decision in Ramesh Food Products to the cases in hand and to deny the benefit of SSI exemption to the goods to which the said exemption notification applies. [Emphasis supplied]
6. In the result, stay application is disposed waiving requirement of pre-deposit and appeal is also disposed allowing the relief claimed.
( D.N. Panda ) Judicial Member ( Rakesh Kumar ) Technical Member Ckp.
1 Excise Appeal No.729/2012-EX(DB)