Custom, Excise & Service Tax Tribunal
C.C.E., Chandigarh vs Positive Healthcare on 19 May, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, SCO 147 148, Sector 17-C, Chandigarh-160 017 COURT-I Date of hearing/decision: 19.5.2016 Central Excise Appeal No.3731 to 3733 of 2006 Arising out of the order in appeal No.778-780/CE/CHD/06 dated 25.8.2006 passed by the Commissioner, Central Excise (Appeals), Chandigarh. For approval and signature: Honble Mr. Ashok Jindal, Judicial Member Honble Mr. Raju, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?-* 3 Whether their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? C.C.E., Chandigarh .. Appellant Vs. Positive Healthcare Mimec Pharma Pvt. Ltd. Uniroyal Pharmaceuticals Ltd. ... Respondents
Appearance:
Present Shri Harvinder Singh, A.R. for the Appellant/Revenue Present Shri Sundeep Singh, Advocate for the respondents Coram: Honble Mr. Ashok Jindal, Judicial Member Honble Mr. Raju, Technical Member Final Order No.: 60098-60100/2016 Per Ashok Jindal:
Revenue is in appeal against the impugned order on the ground that the decision of the Tribunal in the case of Remidex Pharma Ltd. vs. C.C.E., Bangalore -2006 (194) ELT 288 (Tri-Bangalore) has been challenged by Revenue before the Honble Apex Court , therefore, the impugned order is to be set aside.
2. Heard the ld. A.R. and perused the record.
3. We find that the facts of the case are that M/s Uniroyal Pharmaceuticals Ltd. are engaged in the manufacture of P & P medicaments. As the appellant is a small scale unit, therefore, they were availing the benefit of Notification No.8/2003 dated 1.3.2003. The respondents are also manufacturing branded goods for various manufacturers and paying duty in full at the rate of 16% on those goods. During the course of audit, it was observed that various final products have been manufactured in their factory by two companies namely, M/s Mimec Pharma (P) Ltd. and M/s Positive Healthcare by giving same factory address on the packing/labels thereof. On being further enquiry it was informed that the products belonging to both of the said companies who were holding loan licenses granted by the Drug Control authorities under the provisions of Drugs and Cosmetics rules, 1945 were also manufactured in the same premises. It was also observed that M/s Uniroyal had allowed both the said companies to use their premises, equipment and service of their qualified staff for the purpose of manufacturing their products. It was revealed from the records that respondent M/s Uniroyal Pharmaceuticals Ltd. has paid duty on the goods manufactured by these companies being job workers. In view of the above, it was alleged that loan licence entitles the licensee to utilise infrastructure belonging to others to manufacture their products and not to get their products manufactured from others on job work basis and that is why both the said loan licenses had been allowed by M/s Uniroyal Pharmaceuticals Ltd. to utilise their factory premises, equipments/machinery and the services of their qualified staff enabling them to manufacture their products. In that circumstances, the same is required to be on the value of the goods on which loan licensee has cleared the goods in the open market. In these set of facts the demand was raised against M/s Uniroyal Pharmaceuticals Ltd. and proposed penalty on the other respondents. The matter was adjudicated. On appeal before the ld. Commissioner (Appeals), it was held that M/s Uniroyal Pharmaceuticals Ltd. is the manufacturer being job worker in the light of the decision in the case of Remidex Pharma Ltd. (supra). Consequently , it was held that the prices at which M/s Uniroyal Pharmaceuticals Ltd. has cleared the goods to loan licensee itself is payable thereon on the value at which loan licensee has cleared the goods. Revenue is in appeal against the said on the ground that the decision in the case of Remidex Pharmaceuticals Ltd. has been challenged before Honble Apex Court.
4. We have gone through the facts of the case and examined the issue. On examination of the issue to ascertain whether the goods have been manufactured in the premises of M/s Uniroyal Pharmaceuticals Ltd. as job worker who has paid the duty at the time of clearance of the goods from the factory. The issue has been examined by this Tribunal in the case of M/s Dolphine Laboratories vs. C.C.E. , Ahmedabad 2005 (185) ELT 206 (Tri-Del.) and Remidex Pharma Ltd. vs. C.C.E., Bangalore (supra) wherein it has been held that loan licensee has supplied the raw materials to the job worker who manufacture the goods as per the specification of the loan licensee on getting processing charges, therefore, the manufacturer is the job worker who carries out entire manufacturing process in their factory. Therefore, the job worker is the manufacturer and required to pay duty at the value on which they have cleared the goods to loan licensee. We also find that the said decision in the case of Remidex Pharma Ltd. (supra) has been affirmed by the Honble Apex Court reported in 2007 (207) ELT A 183. As the issue has attained finality, therefore, we find no infirmity in the impugned order. The same is upheld. The appeal filed by Revenue is dismissed.
(Ashok Jindal) Judicial Member
(Raju)
Technical Member
scd/
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