Custom, Excise & Service Tax Tribunal
Cce Pune Ii vs Uni Sankyo Ltd on 31 January, 2018
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
E/105/09
(Arising out Order-in- Appeal No. PII/PAP/195/2008 dated 17.10.2008 passed by the Commissioner of Central Excise (A), Pune II)
For approval and signature:
Honble Shri Ramesh Nair, Member (Judicial)
Honble Shri Raju, 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 No 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?
CCE Pune II
Appellant
Vs.
Uni Sankyo Ltd.
Respondent
Appearance:
Shri N.N. Prabhudesai, Supdt. (AR) for the appellant Ms. Manasi Patil, Advocate for the respondent CORAM:
Honble Shri Ramesh Nair, Member (Judicial) Honble Shri Raju, Member (Technical) Date of hearing : 27.11.2017 Date of decision : 31.01.2018 O R D E R No: ..
Per: Ramesh Nair The fact of the case is that the respondents have claimed exemption notification no. 4/2006 dated 01.03.2006 vide Sr. No. 47 in respect of their final product namely Natural Micronised Progesterone under the name Sugest. The departments case is that as per Sr. No. 47 of 4/2006 and list 3 of Sr. No. 58 the product covered under exemption is Natural Micronised Progesterone tablet whereas the appellants product consist of various ingredients namely Lactose N-Ex, Maize Starxch, Sodium Starch Glycolate N-Ex, B- Cyclodextrin N-Ex, Aerosil (Colloidal Silicon Di-oxide) N-Ex, Carbomer 940N-Ex, Sodium Bicarbonate, Methyl Paraben, Glycerine Iso-Propyl Alcohol, Magnesium Sterate N-Ex, Talc and Adipic Acid. Therefore the product is not alone Natural Micronised Progesterone, accordingly, exemption is not available.
2. Shri N.N. Prabhudesai, Ld. Supdt. (AR) appearing on behalf of the revenue reiterating the grounds of revenues appeal submits that as per the notification only the product which is named in the list 3 of notification 21/2002 dated 01.03.2002 is exempted. In the list, the goods exempted is Natural Micronised Progesterone whereas the medicine sold by appellant is not made out of Natural Micronised Progesterone only but 15 more ingredients were added. Therefore the product manufactured by the appellant is not the same which is appearing at Sr. No.58 of list 3 of notification 21/2002-Cus. Therefore not eligible for exemption notification 4/2006-CE.
3. Ms. Mansi Patil, Ld. Counsel appearing for the respondents support the impugned order.
4. On careful consideration, we find that as per the exemption entry the drug and medicine both are exempted. Drug contains only one ingredient i.e. basic drug whereas any medicine which is manufactured out of a drug is invariably consist of other ingredients which is not in the form of excipient. Merely by adding the excipient, the medicine which has character of basic drug does not get altered. Therefore, only by adding excipient the exemption cannot be denied. In the facts of the present case, we observe that the product is sold in the name of Sugest.
5. From the above packing of the product it can be seen that the product sold is Natural Micronised Progesterone. Therefore even though it contains various other excipients, the medicine is clearly covered under Sr. No. 58 of the list 3 of notification 21/2002-Cus. Therefore it is eligible for exemption notification no. 4/2006-CE. From the order of the Commissioner (Appeals) we have observed that after following various judicial pronouncements, given following findings.
From the above, it can be seen that before granting exemption to any product or item, there is a purpose and the purpose is decided on the basis of policy of the government. It is a duty of the organs of the government to bring the policy/ intention of the government into practice. In other words, the policy/ intention of the government should not be defeated by applying narrow meaning. In the instant case, the policy of the government is to grant exemption to the generic medicines namely, Micronised Progesterone and the appellant by executing the bond before the customs authorities, have imported the same in bulk at a concessional rate in terms of notification no. 21/2002 and manufactured PP medicine viz. Micronised Progesterone and marketed the same under the brand name/ house mark as Sugest. The product in question is in the market for a number of years and thus, its usage has been provided beyond doubt. The lower authority i.e. the Deputy Commissioner, central excise, Ratnagiri has proceeded on wrong presumption i.e. name Sugest has not been found mentioned and the product Micronised Progesterone is a blended one. He has also failed to notice the order issued by the officer of his own Commissionerate in the appellants own case. He has not only proceeded on wrong presumption but also imposed equal penalty without giving any reasons as to how the appellant attracts equal penalty. The imposition of equal penalty by the Dy.Commissioner without adducing any reasons clearly shows that the power can be misused against the voiceless assessees. Such action is not in the interest of the Revenue.
6. On reading of the above finding, we are completely in agreement with the ld. Commissioner (Appeals), therefore we uphold the impugned order and dismiss the revenues appeal.
(Pronounced in Court on ..............................) (Raju) Member (Technical) (Ramesh Nair) Member (Judicial) //SR
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