Custom, Excise & Service Tax Tribunal
Alkem Laboratories Ltd vs Belapur on 22 September, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NOS: E/3000/2003 & E/540/2004 CROSS-OBJECTION NO: E/CO-111/2004 (Arising out of Order-in-Original No: 07/COMMR./0304 dated 29/05/2003 passed by the Commissioner of Central Excise, Customs & Service Tax, Belapur.) For approval and signature: Hon'ble Shri S.S. Kang, Vice President Hon'ble Shri S.K. Gaule, 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? : Yes 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 APPEAL NO: E/3000/2003 Alkem Laboratories Ltd. ...Appellant Vs Commissioner of Central Excise, Customs & Service Tax Belapur ...Respondent
APPEAL NO: E/540/2004 & E/CO-111/2004 Commissioner of Central Excise, Customs & Service Tax Belapur ...Appellant Vs Alkem Laboratories Ltd.
...Respondent Appearance:
Shri Bharat Raichandani, Advocate for the assessee-appellant Shri H.B. Negi, Authorised Representative (SDR) for the Revenue CORAM:
Hon'ble Shri S.S. Kang, Vice President Hon'ble Shri S.K. Gaule, Member (Technical) Date of decision: 22/09/2010 ORDER NO: ____________________________ Per: S.S. Kang, Vice President Assessee as well as Revenue filed appeals against the same impugned order. In the appeal filed by the Revenue the assessee also filed cross-objection.
2. The only issue involved in these appeals is valuation of physician sample. The adjudicating authority held that the value of 'special catch pack' is to be added to the value of physician sample for the purpose of levy of Central Excise duty and confirmed the duty demand for the period of six months (whereas during the period in dispute the normal period of demand is one year). The assessee filed appeal on the ground that the value of 'special catch pack' is already included in the value of 'trade packs', therefore, the inclusion of value of special catch pack of the physician sample is not called for. The contention is that, in the reply to the show-cause notice the appellant specifically stated that the value of the physician sample is already included in the cost of trade pack which were cleared on payment of appropriate duty. This fact was not taken into consideration while passing the impugned order. It is also submitted that the appellants are paying duty on the physician sample on pro-rata basis and if the value of the physician sample is arrived at by taking into consideration 115% of the cost of production even in that case the appellant are paying more duty. Therefore, the demand is not sustainable.
3. In the Revenue's appeal, the contention of the Revenue is that the appellant had not disclosed to the Revenue that they are not adding the value of special catch pack in the assessable value of the physician sample. Therefore, extended period is invocable. On merits, the contention of the Revenue is that as special catch pack is not in the trade packs and is only in respect of physician sample, therefore, the question of value of special catch pack included in the value of trade pack will not arise. It is also submitted that in support of this pleading the appellant has not produced any evidence, therefore, as the physician samples are cleared with the special catch pack, the value is to be added to the assessable value of physician sample.
4. We find that the only issue involved in this appeal is the valuation of physician sample cleared by the appellant. The Revenue wants to add the cost of special catch pack in the assessable value of the physician sample and raised the demand. The contention of the appellant is that they are paying duty on pro-rata basis which is higher than 115% of the cost of physician sample and the cost of special catch pack is already included in the cost of trade pack on which duty has already been paid. We find in respect of this contention is raised by the appellant in the reply to the show-cause notice and the same has not taken into consideration while passing the impugned order and the demand was confirmed by taking into consideration the cost of special catch pack in the assessable value of physician sample. In these circumstances, we find that the matter requires re-consideration by the adjudicating authority. Further, we find that the adjudicating authority confirmed demand for normal period of limitation by taking into consideration six months period whereas during the period in dispute the normal period of limitation was one year as per the provisions of Section 11A of the Central Excise Act. Therefore, in the appeal filed by the Revenue also, we find the matter requires reconsideration. Accordingly, the impugned order is set aside and the matter is remanded to the adjudicating authority for de nova adjudication. The adjudicating authority will decide afresh after affording a reasonable opportunity of hearing to the appellant.
5. The appeals are disposed of by remand. The cross-objection is also disposed of in same terms.
(Dictated in Court) (S.K. Gaule) Member (Technical) (S.S. Kang) Vice President */as 5 5