Custom, Excise & Service Tax Tribunal
General Pharmaceuticals Pvt. Ltd vs Commissioner Of Central Excise, Pune-I on 28 December, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL Nos. E/1126 to 1128/04 (Arising out of Order-in-Appeal No. PI/350 to 352/03 dated 29.11.2003 passed by Commissioner of Central Excise (Appeals), Pune-I) For approval and signature: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== General Pharmaceuticals Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Pune-I Respondent Appearance: Shri Bharat Raichandani, Advocate, for appellant Shri Y.K. Agarwal, Additional Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) Date of Hearing: 28.12.2011 Date of Decision: 28.12.2011 ORDER NO Per: S.S. Kang
Common issue is involved in these appeals, therefore are being taken up together. The appellants are engaged in the manufacture of textile chemicals, namely Amigen, Sorgen, Diakanol, Diakamin, Noigen and Sigum. The appellants are claiming the benefit of Small Scale Exemption Notification and clearing the goods without payment of duty. The Revenue issued show cause notices demanding duty after denying the benefit of Small Scale Exemption Notification on the ground that the appellants were clearing the manufactured goods under the brand name or trade name which does not belong to the appellants.
2. We find that for the earlier period show cause notices were issued for denial of the benefit of Small Scale Exemption Notification on the same ground and the adjudicating authority denied the benefit of the Notification and confirmed the demand. The appellant as well as the Revenue filed appeals before the Tribunal challenging the order passed by the adjudicating authority. The Revenues claim before the Tribunal was in respect of interest whereas the appeals of the appellant were challenging the demands. The Tribunal upheld the order passed by the adjudicating authority and held that the applicants are not eligible for the benefit of the Notification. The decision of the Tribunal is reported as CCE, Pune vs. General Pharma Ltd. 2003 (157) ELT 673 (Tri.-Mumbai). The appellant filed appeal before the Honble Supreme Court and the Honble Supreme Court held that the products Diakanol, Diakamin and Noigen are cleared with the registered trade mark of M/s. Dai Ichi Karkaria Ltd., hence the appellants are not entitled for the benefit of the Notification in respect of these manufactured goods. The Honble Supreme Court remanded the matter to the Tribunal to decide afresh in respect of the products Amigen, Sorgen and Sigum. The decision of the Honble Supreme Court is reported as General Pharmaceuticals Pvt. Ltd. vs. CCE, Pune-I 2006 (197) ELT 322 (SC). In pursuance to the remand order passed by the Honble Supreme Court, the Tribunal held in favour of the assessee in respect of the products Amigen, Sorgen and Sigum and held that the appellants are entitled for the benefit of Small Scale Exemption Notification in respect of these products. The Tribunals decision is reported as 2007 (218) ELT 86 (Tri.-Mumbai). In view of the above decisions of the Honble Supreme Court and the Tribunal, the appellants are not entitled for the benefit of Small Scale Exemption Notification in respect of the three products, namely Diakanol, Diakamin and Noigen. The appellants are entitled for the benefit of the Notification in respect of the products Amigen, Sorgen and Sigum.
3. In respect of imposition of penalties, we find that as the issue in respect of eligibility of the Notification travelled upto the Honble Supreme Court and the Honble Supreme Court found that the appellants are not entitled to the benefit of Small Scale Exemption Notification in respect of three items and in respect of three items the Tribunal allowed the benefit of Small Scale Exemption Notification, therefore it is not a case for imposition of penalties. Hence the penalties are set aside. The appeals are disposed of as indicated above.
(Dictated in Court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President tvu 1 4