TMI Blog2013 (6) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court [2009 (3) TMI 55 - SUPREME COURT], shall decide the matter as per directions issued by the Apex Court.- If the matter is decided in favour of the petitioner then there would be no question of imposing of any excise duty against the petitioner. However, if the matter is decided against the petitioner, the department shall be free to issue fresh show cause notices. However, this action shall be subject to final adjudication of the dispute after the order passed by the Tribunal. - Writ Petition No. 13584 of 2010 - - - Dated:- 27-11-2012 - Krishn Kumar Lahoti and Shantanu Kemkar, JJ. Shri L.N. Soni, Learned Sr. Advocate with J. Lopez, Counsel, for the Petitioner. Shri Vinay Zelawat, Learned Counsel, for the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2009 (236) E.L.T. 625 (S.C.)] decided the appeals, which 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 earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led analysis of the notification in question by the Commissioner, the Tribunal has not examined this aspect and, therefore, the matter needs to be remitted to the Tribunal to give its finding as to what is the effect of the 2001-2002 Budget which restricts the definition of IV Fluids in terms of the above three qualifications. There is one more aspect which the Tribunal is required to consider. In the labels of the respondent-Company, there is a warning stating that IV fluid manufactured by the assessee is Schedule-H Drug. What is argued on behalf of the assessee(s) is that because of addition to the IV Fluid of one of the above- mentioned six items, the product manufactured is required to be sold as a Schedule-H drug. On the other hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al but before the order passed by the Apex Court, various show cause notices were issued to the petitioner by the Excise Department directing the petitioner to show cause why the tax as shown in the notices may be imposed. These notices are under challenge in this appeal on the ground that during period between 27-2-2004 and 31-3-2009, the order of the Tribunal was in force and there cannot be any recovery of the excise duty from the petitioner. It was also stated that the Tribunal has not decided the matter in spite of the order of the Apex Court so no recovery could have been directed against the petitioner. It was submitted by Shri L.N. Soni, learned senior Advocate that aforesaid notices may be quashed. 4. Shri Vinay Zelawat learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notices by which recovery was directed against the petitioner were totally untenable as at that time no recovery could have been directed, so we find it appropriate to decide the matter with following directions :- 1. Show cause notices Annexure P-1A to P-1J are hereby quashed. 2. The Customs, Excise Service Tax Appellate Tribunal, who has been directed by the Apex Court, shall decide the matter as per directions issued by the Apex Court. 3. If the matter is decided in favour of the petitioner then there would be no question of imposing of any excise duty against the petitioner. However, if the matter is decided against the petitioner, the department shall be free to issue fresh show cause notices. However, this action sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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