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TMI Blog2000 (2) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... llants also claim the benefit of Central Excise Notification No. 2/95, dated 15-1-1995 for such DTA clearances. However, vide Notice, dated 17-11-1998 issued by Additional Director General of Anti-evasion, it was alleged that diferential duty on Cefotaxime Sodium and Cefazolin Sodium, two bulk drugs covered by DPCO order, was recoverable since they were cleared at a lower price than the maximum price fixed by the DPCO. It was alleged that in terms of Section 4(1)(a)(ii), the maximum sale price fixed by the DPCO would form the assessable value. Suppression of facts were also alleged which led to the passing of the Order-in-Original No. 7/99, dated 22-4-1999 by Commissioner of Central Excise wherein the duty and penalties were imposed as well as interest at 20% per annum was also confirmed under Section 11AB. But the proceedings in respect of confiscation proposals were dropped. 4. Ld. Advocate submits that it is not disputed that the valuation of such goods would have to be in terms of Section 4 of the Central Excise Act as they were to be sold in the DTA. However, provision (ii) to Section 4(1)(a) of the Act would not apply in this case at all for the reasons that the DPCO on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this proviso applies notwithstanding anything contained in proviso (iii). The effect is that even in the case of slaes by the assessee to related person if such sales are at the price or the maximum price fixed under any law, the assessment shall be made at the price or the maximum price so fixed and the 'normal price' will not be determined in the manner laid down in proviso (iii). He submits that in this case since the goods sold by the present appellants in DTA were not at the statutory price, therefore in terms of the said Circular the normal price under Section 4 would be the assessable value. Ld. Advocate further submits that the question of applicability of the DPCO prices to various drugs is a matter which had been agitated by the Industry before the Central Govt. and the same was pending consideration. Accordingly, vide F. No. 120/7/98-CX. 3, dated 23-12-1998 addressed by the Under Secretary, Central Board of Excise and Customs to all Commissionerates, etc., if had been directed that the show cause notices issued on Pencillin-G demanding differential duty on the basis of the DPCO maximum price should not be enforced at all till further directions from the Board. Ld. Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have demonstrated that the case on merits is totally in their favour both in terms of question of assessable value as well as on limitation, therefore their application for full waiver and stay requires favourable consideration. He further submitted that the matter could be remanded to the Original Authority as he has not only in internal page 9 in para 7 of the order impugned (the Ld. Commissioner has) noted the words 'instructions of 8-8-1975' but has held that he would not follow the same because they were contrary to provisions of Section 4(1)(a)(ii). In this connection, he cites the decisions of the Hon'ble Supreme Court in the case of Ranadey Micronutrients v. CCE as in 1996 (87) E.L.T. 19 wherein the Hon'ble Apex Court had held that Ciculars issued by CBEC to all Collectorates are not advisory in character but binding on them and the department cannot be allowed to plead that such a Circular was not held in law as they were meant for adoption of uniform practice. Therefore, the departmental officers cannot repudiate the Circular on the ground that it is inconsistent with the statutory provisions. Ld. Advocate submits that the findings of the ld. Commissioner in the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice would be rendered redundant; because, if the said maximum price is not accepted as the assessable value, then the wholesale price at the factory gate would have to be adopted. Ld. DR files in Court copy of the letter, dated 2-2-2000 from the Office of the Director-General of Anti-Evasion, Chennai which contains certain parawise comments in compliance of the Bench direction to get comments on the Board's Circular of 1975. He reiterates the same. In this connection, he submits that the decision of the Tribunal in the case of Soyabeans and Vanaspati Industries v. CCE as in 1999 (105) E.L.T. 238 which held that the assessable value would be at the price at the Essential Commodities Act within that sale has been effected at the lower price. Therefore, ld. D.R. submits that as the Board's Circular of 1975 is very old, it should not be solely relied upon, particularly in the light of the judgment noted above. He, therefore, prays that the appellants may be required to pre-deposit the sums as deemed fit in the matter. 6. At this point ld. Advocate rose to counter that the decision of Soyabeans supra of the Tribunal did not take into consideration the Board's Circular at all. Sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this regard. (d) The letter of the Under Secretary of the Board asking Field officers to hold in abeyance any recovery action with respect to the drug mentioned under DPCO that was in the context of Pencillin-G but on a prima facie consideration, the ratio of the same would also apply to other bulk drugs. In this connection, we also note that no other Commissionerate has adjudicated the numerous show cause notices which have been issued throughout the country on this matter. (e) We also find that since the appellants harboured a bona fide belief that in view of the said Circular of 1975, the assessable value would not be the maximum price of DPCO but the normal price in terms of Section 4, therefore on a prima facie consideration, they have demonstrated that the extended period may not be invokable in this case. 8. In view of the aforesaid analyses and findings, we are of the clear prima facie view that the appellants having demonstrated that they have a very strong case in their favour both on merits as well as on limitation and also because the Order-in-Original impugned has taken up a position which is totally inconsistent to two judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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