TMI Blog2008 (9) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... does not amount to manufacture; confirmed the demand of an amount of Rs. 1,65,45,396/- in terms of Rule 6(3)(b) of the Cenvat Credit Rules, 2004 along with interest and; imposed equivalent penalty of Rs. 1,65,45,396/-. 2. Heard both the sides and perused the records. 3. The applicants are, inter alia, engaged in the manufacture of different Bulk Drugs and Formulations falling under different sub-headings of Chapters 29 and 30 of the Central Excise Tariff Act, 1985. 4. The Applicants, inter alia, manufacture Rifampicin, Isoniazid, Pyrazinamide and Ethambutol. They import Dapasone BP Tablets and Clofazamine (Lamprene) BP capsules without payment of CVD under Notification No. 4/2006 dated 1-3-2006. 5. They sell Rifampicin under its br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pter Heading 30.04 of the First Schedule to the Central Excise Tariff Act, 1985 is relevant for the purpose of this case. Antitubercular Drugs, Antileprotic drugs, Antimalarial drugs Sr. No. Products Chapter Sub-heading (i) Isoniazid 30049051 (ii) Rifampicin 30049052 (iii) Pyrazinamide and ethambutol 30049053 (iv) Streptomycin 30049054 (v) Dapsone (DDS), acednpsone (DADDS), solopsone and Clofazaimine 30049055 (vi) Chloroquine, amodiaquine, mefloquine, quinine, Chloroguamide, pyrimethamine 30049056 (vii) Other antitubercular drugs 30049057 (viii) Other anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) have no application in the case of excisable goods cleared in the circumstances set out herein. Two of the circumstances specified therein are : (iv) supplied to the United Nations or an international organization for their official use or supplied to projects funded by them, on which exemption of duty is available under notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 108/95-Central Excise, dated the 28th August, 1995, number G.S.R. 602(E) dated the 28th August, 1995; or (v) cleared for export under bond in terms of the provisions of the Central Excise Rules, 2002. 12. The Commissioner has, in para 22 of the Order, held that the applicants are not maintaining the separate accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. The applicants, prima facie, appear to be entitled to the credit in respect of inputs used in the exempted goods cleared for export and claim refund of the same under Rule 5 of the Cenvat Credit Rules. The Tribunal in the case of Punjab Stainless Steel Industries reported in 2008 (226) E.L.T. 587 (Tri. - Del.) = 2008 TIOL 1004 has held that the Cenvat credit of the inputs used in exempted goods for export is permissible and refund in respect thereof can be claimed under Rule 5 of the Cenvat Credit Rules, 2004. 18. Prima facie, it appears that the Order of the Commissioner is contrary to and inconsistent with the judgment of the Hon ble Bombay High Court dated December 6, 2007 in Writ Petition No. 6951 of 2007 filed by M/s. Repro Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible, Cenvat credit is refunded in cash. This appears to be the Scheme of Rule 5 of the Cenvat Credit Rides, 2004. With a view to achieve this object, the Central Government has specifically enacted Rule 6(6)(v) of the Cenvat Credit Rules, 2004 to the effect that the bar created by Rule 6(I) will not apply for goods exported. Considering the conscious and express provisions contained in Rule 6(6)(v) for exported goods, to deny the permission to export under bond and/or to levy 10% on the value of the exported goods under Rule 6(3)(b) on the footing that the printed books are exempt and, therefore, attract Rule 6(1) would be incorrect and completely nullify and frustrate Rule 6(6)(v). 9...... A perusal of the aforesaid Rules would cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the expression excisable goods which is wider to include both dutiable as well as exempted goods. 10. In our opinion, therefore, the petition will have to be allowed. The Petitioners are entitled to remove the goods on furnishing the bond as set out in Annexure 16 in Form B-l of the Central Excise Manual. Rule made absolute accordingly. There shall be no order as to costs . 19. The Tribunal in the case of Norris Medicines Ltd. reported in 2003 (56) RLT 353, in the context of the availability of the Modvat credit on the inputs used in the exempted products being exported, has held that the bar of Rule 57C and Rule 57CC will not be applicable in respect of exported products even though the same are otherwise exempt from duty. 20. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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