TMI Blog2010 (10) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... period prior from 4-5-2000 to 1-3-2001 and that the notification dated 1-3-2001 has no retrospective effect. Additional Evidence - assessees filed applications for production of additional evidence in terms of Rule 23 of CESTAT Procedure Rule 1982 - no party to the appeal is entitled, as a matter of right, to produce any additional evidence either oral or documentary before the Tribunal. Undoubtedly, if the Tribunal is of the opinion, that for sufficient cause, such opportunity should be given, and then the parties can be permitted to produce such evidence - It is settled law, and the assessees are very well knew that the matters relate to the claim of exemption benefit and therefore the burden in that regard squarely lies upon the assessees to establish the claim and therefore it was necessary for the assessees to produce all the materials in support of their claim before the adjudicating authority - Decided against the assessee. - E/2752, 3110, 3249 & 837/2003 and E/3519, 4688, 4739, 4860 & 6075/2004 and Cross-Objection No. E/Cross/47/2005 - 759-767/2010-EX(PB) - Dated:- 29-10-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri S.K. Bagari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C.)], the Hon ble Supreme Court set aside the orders passed by the Tribunal and remanded the matter to the Tribunal. The remand order reads thus :- Delay condoned. In this batch of Civil Appeals, the main issue which arose for determination before the Adjudicating Authority was whether Intravenous Fluids having a therapeutic value stood covered under Exemption Notification No. 3/2001. In the lead matter - M/s. Parenteral Drugs (I) Ltd. - the respondents were engaged in the manufacture of various types of Intravenous Fluids. They were availing the benefits of Notification No. 6/2000, dated 1-3-2000. The said Notification was amended by Notification No. 36/2000, dated 4-5-2000, whereby Entry No. 47-A was added thereby exempting Intravenous Fluids from payment of excise duty. However, from 1-3-2001, the earlier notifications were replaced by Notification No. 3/2001 which defined Intravenous Fluids as those which are used for sugar, electrolyte or fluid replenishment. In other words, open-ended exemption stood restricted by the above three qualifications. Accordingly, the show cause notices were issued in which it was alleged that the respondents were engaged in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be read strictly. We may also add that the burden is on the assessee to prove that the item falls within the four corners of the exemption notification. Before concluding, we may state that if on the second issue, regarding Schedule H Drug, as spelt out hereinabove, if the Tribunal feels that the matter requires further evidence, it may either itself decide that point after giving opportunity to the parties or it may remit the matter to the Adjudicating Authority for its decision on factual aspect in accordance with law. Subject to what is stated above, the Department s appeals are allowed, the impugned judgment is set aside and the matters are remitted to the Tribunal for fresh consideration in accordance with law. In the facts and circumstances, there will be no order as to costs. 5. Plain reading of the said remand order discloses that the Hon ble Supreme Court has made it abundantly clear that the earlier Notification No. 6/2000 dated 1-3-2000 as amended by the Notification No. 36/2000 dated 4-5-2000 was replaced by new notification with different provision under Notification No. 3/2001-C.E., dated 1-3-2001 and secondly that the earlier notification was open ende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 89 that when the order of the lower authority is set aside and the matter is remanded with specific directions then the power and jurisdiction of the lower authority is confined to the limits prescribed by the remand order. In such cases, the entire matter is not at large before the lower authority, nor the authority is free to decide the case in its own way. Similar was the ruling by the Apex Court in Mohan Lal v. Anandi Bai Ors. reported in AIR 1971 SC 2177 and reiterated in Paper Products Ltd. v. Commissioner of Central Excise, Mumbai reported in 2007 (214) E.L.T. 161. 10. The restrictive nature of remand is further clear from the last para of the order of the Hon ble Supreme Court wherein it has been specifically held that the appeals by the Department were allowed and the order of the Tribunal was set aside and the matters were remanded for fresh consideration in accordance with provisions of law subject to what is stated above . The expression subject to what is stated above clearly brings out the restrictions imposed upon the scope of inquiry and adjudication of the matter by the Tribunal while deciding the appeals afresh in accordance with the law. 11. The Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber, 2002 and the show cause notice was issued on 19-3-2003. The products involved were Ciprofloxacin, Mannitol, Anticoagulent Citrate Dextrose Solution, Anticoagulent Citrate Phosphate Dextrose Solution, Metronidazole, CPO Solution, Sodium Chloride Irrigation, D-Flox, Tinidex and Qulox. The Commissioner confirmed the duty amounting to Rs. 23,27,116/- along with interest thereon and had imposed penalty of Rs. 5 Lakhs under Ruled 25 of the Central Excise Rules. 14. The Excise Appeal No. E/837 of 2005 has been filed by M/s. Prem Pharmaceuticals against the order passed by the Commissioner, Indore on 29-1-2003. The period involved was from April, 2001 to March, 2002 and a show cause notice was issued on 29th April, 2002. The products involved were Ciprof loxacin, Mannitol, Anticoagulent Citrate Dextrose Solution, Anticoagulent Citrate Phosphate Dextrose Solution, Metronidazole, CPO Solution, Sodium Chloride Irrigation, D-Flox, Tinidex and Qulox. The Commissioner confirmed demand of duty to the tune of Rs. 33,14,549/- along with interest thereon and also imposed penalty of Rs. 5 Lakh under Rule 173Q of the Central Excise Rules, 1944 and Rule 25 of the Central Excise Rules, 2001/2002. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit. The entire penalty was set aside. 18. The Excise Appeal No. 6075 of 2004 has been filed by the Department against the order passed by the Commissioner (Appeals), Indore on 21-7-2004. The period involved in the matter is from April, 2001 to March, 2003. Two show cause notices came to be issued, one dated 25-6-2002 and the other dated 7-7-2002. The products involved therein were Mannitol, Glydex, Entigyl, Mezodex, Elcip, Metranidazole, Mezodex, Ciprofloxacin, Entigyl, Glycine Irrigation and Sodium Chloride Irrigation. The Adjudicating Authority therein had confirmed the demand to the tune of Rs. 1,68,989/- with interest and had imposed penalty of Rs. 1 Lakh in relation to the show cause notice dated 25-6-2002 whereas had confirmed the duty demand to the tune of Rs. 8,371/- with interest and penalty of Rs. 10,000/- in relation to the show cause notice dated 7-7-2002. The Commissioner (Appeals) has set aside the entire demand and the penalty. 19. The applications filed in the said appeals are either relating to leave for production of additional evidence or are in the nature of submissions in response to the opposite side s case. 20. The product manufactured by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he liberty so granted is only in relation to the issue pertaining to the warning comprised under label affixed to the container of the product manufactured by the assessees. The remand order nowhere refers to such liberty in relation to other issue. 24. The applications filed by the assessees for additional evidence is not in consonance with the said liberty. The same clearly travel beyond the scope of the liberty granted by the Hon ble Supreme Court in the remand order. 25. It is pertinent to note that in case of claim for exemption from payment of duty on the basis of a notification, it is always for the assessee to establish his claim by producing sufficient evidence in support of such claim. In fact, this elementary principle of law relating to the burden to prove was clearly reminded by the Hon ble Supreme Court in the remand order itself; however, no leave or liberty was sought for by the assessees from the Hon ble Supreme Court to produce further evidence on the said issue. In other words, in spite of knowing well the said elementary principle of law and in spite of reminding about the same by the Hon ble Supreme Court in the remand order itself, and further that the lib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessees to produce further evidence in that regard. Being so, the question of Tribunal permitting the assessees to lead further evidence on any other issue does not arise. 29. Even otherwise, a party to an appeal seeking to produce additional evidence has to make out a sufficient cause for production thereof. The sufficient cause would necessarily imply that such party should disclose the cause for non-production of such evidence before the adjudicating authority and the cause for production thereof only at the appellate stage before the Tribunal. When we speak of cause for such delay, the same must be convincing and justifiable. 30. Perusal of the applications filed by the assessees nowhere discloses any cause for non-production of proposed material before the adjudicating authority. Rather the liberty granted under the remand order to the assessees to lead further evidence is sought to be misconstrued to include the liberty relating to the evidence pertaining to the issues other than the warning about Schedule H drug also. The material sought to be produced do not relate to the issues under consideration in the matter at this stage. 31. For the reasons stated above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that a medicament is mixed up or assimilated with the other contents in the intravenous fluids used for sugar or electrolyte or fluid replenishment, such products would also be entitled for benefit under the said notification. According to the assessees unless the notification is so read, it would amount to reading down the notification with the addition of the expression like exclusively which would defeat the very purpose of the notification. That apart, it would be contrary to the law laid down by the Apex Court as regards the scope and rules of interpretation of an exemption notification. 36. The ld. Advocates appearing for the assessee have strenuously argued that once the condition specifically stated in the notification stands satisfied, the product would be eligible for availing the benefit thereunder. The fact that intravenous fluids, apart from being used for sugar, electrolyte or fluid replenishment, also carry some other drugs/medicaments, do not in any way make the notification inapplicable. It has been further submitted that the notification does not contain any restriction or prohibition in that regard nor it uses the expressions like solely or only or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively much smaller, are mixed in the intravenous fluid at the manufacturing stage itself so that the doctor will not have to bother about administering such other drugs separately. Apart from being convenient, this also takes care of the concept of aseptic conditions and reduces irritation potential of the drug. The IV fluid continues to perform to primary function of being used for sugar, for replenishment and simultaneously carries other drugs and medicaments as incidental to its main function and does not in any manner change the identity or the character of IV fluids. 38. It is further contention on behalf of the assessees that the aforesaid position is fully recognised in the book viz. Remington s Science and Practice of Pharmacy . It has clearly been stated that it has become common practice to add other drugs to certain intravenous fluids to meet the clinical needs of the patient. Using intravenous fluids as vehicles offers the advantage of convenience, the means of reducing the irritation potential of the drug, and a method for continuous drug therapy. The intravenous fluids even with a small extent of antibiotics are nothing else but intravenous fluids for fluid replen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the exemption thereunder can be extended to the product which is used for any purpose other than those specified therein or for any other purpose along with the purpose specified therein. According to the ld. Advocate for the department, if we accept the interpretation sought to be given by the assessees, it would automatically enlarge the scope of the notification and defeat the very purpose behind the notification. 43. The Advocate for the department has submitted that the essential character of the impugned drugs mixed with intravenous fluids is that of the injections by which nomenclature those products are known in the market. Even in common parlance intravenous fluids are distinguished from IV injections and that is apparent from the tender document placed on record. It is settled law that to understand a product for the purpose of classification, the twin tests, which include the common parlance theory, have to be applied as has been held by the Apex Court in Commissioner of Central Excise, Nagpur v. Shree Baidyanath Ayurved Bhawan Ltd. reported in 2009 (237) E.L.T. 225. Even the Drugs and Cosmetic Act clearly distinguishes the impugned injection, which are covered as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of use of the words like exclusively , only or solely could not deny the benefit to the product in question. 47. The Departmental Representative has also referred to the opinion by the Director, Shri G.S. Institute of Technology and Science, Indore, extracts from Ramington s Science and Practice of Pharmacy, Tender documents of BHU, websites definitions in support of his contentions. All these materials were produced in answer to the applications by the assessees seeking leave to produce further evidence. 48. Before dealing with the rival contentions on the points in issue, it will be necessary to scan through the decision by the Co-ordinate Bench of the Tribunal in Fresenious Kabi India Pvt. Ltd. case and to ascertain whether the same is relevant for the decision in the matters in hand. 49. In Fresenious Kabi India Pvt. Ltd. case, the question for determination was whether the goods imported by the assessee in the year 1999 and 2000 and described in the Bills of Entry as Intravenous Amino Acid were entitled for the benefit of Notification No. 20/99-Cus., dated 28th February 1999 and No. 16/2000-Cus., dated 1st March 2000. The relevant entry under both the notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision which is delivered in relation to a notification, the phraseology of which is totally different, the definition of the product under the notification being of inclusive nature, and the notification being under totally different statute, the said decision cannot be of any help to the assessees in the matters in hand. 51. It is true that the Division Bench had relied upon the decision of the Apex Court in Tata Iron and Steel Co. Ltd., hereinafter referred to as TISCO Ltd. case. In that case, the Apex Court was dealing with a matter relating to an exemption Notification No. 30/60-C.E., dated 1st March 1960 under which steel ingots, in which duty paid pig iron was used, were exempted from so much of duty leviable thereon as is in excess of Rs. 30 per ton. By Notification No. 120/60 dated 1st October 1960, the said Notification No. 30/60 was amended by substituting the figures and words 29.35 per metric tone for the words and figures 30 per ton . Further, under Notification No. 75/62 dated 24th April 1962, steel ingots falling under Item 26 of the First Schedule to the Central Excise Tariff Act and specified in Column 2 of the Table appended to the notification were exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court rightly held that the contention of the Revenue fails on two broad grounds. First, there cannot be double taxation on the same article. Counsel for the Revenue gave the example of excise duty on motor car, in spite of the fact that there was duty on tyres and duty on metal sheets. The analogy is misplaced. In such cases the duty is on the end product of motor cars as a whole. The duty on tyres and the duty on metal sheets do not enter the area of duty on motor car. Second, Notification No. 30/60 grants exemption to duty-paid pig iron. The High Court rightly said that the Notification does not say that exemption is granted only when duty paid pig iron is used and that the exemption would not be available if duty paid pig iron is mixed with other non-duty paid materials. If the intention of the Government were to exclude the exemption to duty paid pig iron when mixed with other materials then the notification would have used the expression only or exclusively or entirely in regard to duty paid pig iron. The object of the notification was to grant relief by exempting duty paid pig iron. 53. The said decision of the Apex Court in TISCO s case relates to the exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods under import were not Intravenous Amino Acid but the bulk drugs for their use in the manufacture of Intravenous Amino Acid. It was not the case that the branded medicines manufactured by the assessee from the imported bulk drugs were not Intravenous Amino Acids and, therefore, the additional presence of Sorbitol or Glucose would not make the manufactured drugs other than Intravenous Amino Acids. In those circumstances, the Apex Court also did not interfere in the said order of the Tribunal. Apparently the decision, apart from being relating to a different notification under a different statute, it is clearly distinguishable on facts. That was in a case where it related to the product used for manufacture of some other products and the exemption notification did not provide that the final product was required to be exclusively the one, which was specified and, nor it provided that such final product should not be accompanied by any other component, either expressly or impliedly. The notification related to a product to be used as intermediate product in the manufacture of a final product. In the case in hand, the exemption notification is under Excise Act relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption should be understood in the same way in which these are understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. It is, however, necessary to bear in mind certain principles. The notification in this case was issued under Rule 8 of the Central Excise Rules and should be read along with the Act. The notification must be read as a whole in the context of the other relevant products. When a notification is issued in accordance with power conferred by the statute, it has statutory force and validity and, therefore, the exemption under the notification is, as if it were contained in the Act itself. So in this connection the observations of this Court in Orient Weaving Mills (P) Ltd. v. The Union of India - 1978 (2) E..L.T. (J311) (S.C.) = (1962 Supp. 3 SCR 481). See also Kailash Nath v. State of U.P. (AIR 1957 SC 790). The principle is well-settled that when two views of a notification are possible, it should be construed in favour of the subject as notification is part of a fiscal enactment. But in this connection, it is well to remember the observations of the Judicial Committee in Coroline M. Armytage Others v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be adopted. 62. In Liberty Oil Mills (P) Ltd. v. Collector of Central Excise, Bombay reported in 1995 (75) E.L.T. 13, the Apex court has held that in case of an ambiguity or doubt regarding an exemption provision in a fiscal statue, the ambiguity or doubt will have to be resolved in favour of the Revenue and not in favour of the assessee. It was observed that the said issue stood concluded by the decision of the three Judges Bench of the Apex Court in M/s. Novopan India Limited, Hyderabad v. CCE Customs, Hyderabad reported in 1994 (73) E.L.T. 769. 63. In Commissioner of Central Excise, Hyderabad v. Sunder Steels Ltd. reported in 2005 (181) E.L.T. 154 (S.C.), the Apex Court had held that a notification has to be interpreted on its wording and no words not used in the notification can be added. 64. In Parle Biscuits (P) Ltd. v. State of Bihar Ors. reported in 2005 (9) SCC 669 = 2005 (192) E.L.T. 23 (S.C.) it was ruled that a statutory notification should not be extended so as to meet a casus omissus, while relying upon the decision in the case of Privy Council in Crawford v. Spooner reported in 1846 6 Moo PC 1, wherein it was held that we cannot aid the legislature s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt arises relating thereto. A notification is to be understood as has been explicitly stated, and at the most, what is necessarily implicit, and nothing less, nothing more. 68. While being cautious of the basic dictums of interpretation of exemption notifications issued under taxing statutes as propounded by the plethora of judicial pronouncements, our dialectic analysis in the matter in hand can not traverse the peripheral limits prescribed under the remand order passed by the Apex Court. 69. The first issue relates to the effect of the budget of 2001-2002 relating to the exemption from payment of duty on IV Fluids. It has two aspects, first relates to retrospectivity and second relates to three qualifications - whether the same disclose restrictive nature or not. The Explanatory Note in the Budget 2001-2002 in respect of Chapter 30 of the Schedule to the Central Excise Tariff Act reads thus :- Medicaments (Chapter 30) - The description of Intravenous Fluids (IV Fluids) has been changed to IV Fluids, for sugar, electrolyte or fluid replenishment. This change is clarificatory in nature. The reference to brand name E Mail, in the exemption relating to ARTEETHER has been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment merely clarified and made explicit that which was implicit in the heading throughout. That is not the case in the matter in hand. The law makers have not merely added any Explanatory Note either to the Chapter 30 or to the Notification itself, but Explanatory Note is under a budget which relates to the subsequent year and effect of note was not merely to amend the Notification No. 6/2000 or Notification No. 36/2000 but to introduce a totally new notification in place of old one. 74. As far as the decision in the matter of Cannanore SPG WVG Mill s Ltd. is concerned, the same was on the basis of concession made by the department s counsel. The decision in Bombay Oil Industries Pvt. Ltd. case was to the effect that the latter notification, which is a fresh notification laying down fresh conditions deleting the earlier conditions about the colour specifications could not be said to be a clarificatory notification nor it can have any retrospective effect. In P. Mahendran s case, it was held that unless there were words in a statute or rules showing the intention to affect the existing rights, the rule must be held to be prospective. Being so, it is difficult to accept that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to intravenous fluids classifiable under Chapter 30. It has restricted to those intravenous fluids which are used for sugar, electrolyte or fluid replenishment. In such circumstances, can it be said that the absence of the words like exclusive , only or entirely would make any difference? 78. The Chapter 30 of the Central Excise Tariff Act refers to various medicaments. If the benefit under the said notification is meant for all such drugs, which are introduced in the human body through intravenous then the law makers would not have qualified the intravenous fluids as being those used for specified purposes while referring to the goods classifiable under Chapter 30 for the purpose of availability of exemption from payment of duty. 79. The contention that the product remains the same even after addition of drugs like ciprofloxacin, metronidazole etc. is neither acceptable, nor even relevant. It is the case of the appellants themselves that some times patient may need some other drugs such as ciprofloxacin, metronidazole etc. and the same instead of administering separately, in order to facilitate the medical practitioners these drugs are mixed with the fluid us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory Note in the Budget, it clearly speaks of changes having been brought about by introducing the above qualifications for the product to be eligible to claim the benefit. Had it been the intention of the law makers to allow IV Fluids with any sort of composition to be eligible for the benefit of exemption then the notification itself would not have qualified the entry with those three words, nor the Explanatory Note would have specifically referred to the changes having been brought about. 83. The contention that even after mixture of anti-biotics with the Intravenous Fluids the latter continues to replenish sugar, electrolyte or fluid in the body and that, therefore, the product does not change its basic character and, therefore, would be eligible for exemption benefit is also totally devoid of substances. Basically the eligibility criteria in relation to the exemption notification nowhere speaks of mixture of Intravenous Fluids with any component which can be used for therapeutic purposes. By way of interpretation of the notification, inclusion of product with such mixture in the eligibility criteria would amount to read down the notification by expanding its scope beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption from the customs duty and additional duty under Notification No. 29/97-Cus., dated 1-4-97. Thereunder the capital goods imported under EPCG Scheme were exempted from payment of customs duty and so much of additional duty as was in excess of 10% of the value of the goods. Under the proviso, if the capital goods were imported for manufacture of the items mentioned therein then they were exempted from payment of whole of the additional duty. Thus, if the capital goods were imported for manufacture of textile garments then under the said notification, the importer was exempted from payment of customs and additional duty. The said exemption was sought to be denied to the assessee on the ground that the machines imported by them were not required for the purpose of manufacture of textile garments. But they were the machines for knitting and dyeing fabrics or for processing of fabric/yarn. The Notification No. 29/97-Cus., itself define the term capital goods under the explanation clause thereto. It provided thus :- Explanation In this notification (1) Capital goods means, (i) any plant, machinery, equipment and accessories required for - (a) manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at p. 761), Lord Mac Dermot observed : The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge. 9. In Home Office v. Dorset Yacht Co. [ 1970 (2) All ER 294] Lord Reid said, Lord Atkin s speech.....is not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Sodium Chloride is used as a fluid and electrolyte replenisher which is the language of the present notification; it deals with a product different from the products in issue in the present case; it interprets a notification which is worded totally different from the present notification; the decision in May and Baker ex facie does not apply to the issue arising in the present case and, therefore, reliance on the same is sans any basis. 89. The fact that IV Fluids are covered by Schedule C whereas the various injections sought to be assimilated with the IV Fluids are covered by the Schedule H of the Drug and Cosmetics Act, is not, nor can be, in dispute. The IV Fluids used for sugar, electrolyte and fluid replenishment do not contain any warning, except when the product is essentially comprised of therapeutic medicines, is also clear from the records. In order to buy a product having Schedule H Drug warning, one has to carry the prescription issued by the registered medical practitioner and this fact is also not in dispute. It is not the case that the medicines like Ciprofloxin or Metromadazole etc. cannot be administered independently and without being mixed with IV Fluids ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed principles of construction of an exemption notification is that it should be construed strictly, but once a good is found to satisfy the test by which it falls in the exemption notification it cannot be exempt from it by resorting to applying or construing such notification narrowly. 90. The evidence in the form of affidavit by Dr. Ram Irani and other literature, which is sought to be produced cannot be considered as the same has not been produced in relation to the issue regarding the warning of Schedule H drug. Even otherwise and even assuming that the evidence has been produced in relation to the said issue, perusal of the said material nowhere discloses any relation to the said issue either directly or indirectly. 91. In Compack Pvt. Ltd. (supra), the Apex Court was dealing with the matter in relation to the interpretation of exemption notification No. 67/82-C.E., dated 28-2-1982. The matter related to the rate of excise duty payable on paper and paper board contained in Chapter 48. Item 48.02 referred to un-coated paper whereas Item 48.07 referred to plastic coated paper. As per the said notification, the only requirement for availing the benefit thereunder was payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. Being so, the orders of imposing penalty cannot be sustained. 96. The appeals filed by the Department are, therefore, to be allowed except in relation to the imposition of penalty. The appeals filed by the assessees are to be partly allowed to the extent they relate to the imposition of penalty and the orders imposing the penalty are to be set aside while confirming the remaining part of the orders, which relates to confirmation of the demand of duty and interest thereon. 97. The appeals filed by the Department against the grant of benefit of Notification No. 3/2001-C.E., dated 1-3-2001 are hereby allowed. The challenge to grant of such benefit under Notification No. 6/2000-C.E., dated 1-3-2000 read with Notification No. 36/2000-C.E., dated 4-5-2000 is rejected. 98. The appeals filed by the assessees rejecting the benefit of Notification No. 3/2001-C.E., dated 1-3-2001 are dismissed. The assessees are entitled for the benefit only in relation to Notification No. 6/2000-C.E., dated 1-3-2000 read with Notification No. 36/2000-C.E., dated 4-5-2000 upto 28-2-2001. 99. In view of what is stated above, all the appeals and the applications filed in the above appeals stand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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