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TMI Blog2014 (11) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Chapter sub-heading Nos. 3003.10 and 3003.20 of the Schedule to Central Excise Tariff Act, 1985, holding Central Excise Registration No. AAACI 3931 RXM 001. 3. Intravenous fluids were chargeable to duty till 3-5-2000. They were brought under exemption by virtue of Notification No. 6/2000, as amended by Notification No. 36/2000, dated 4-5-2000. By Notification No. 3/2001, dated 1-3-2001, clarificatory note was added to the effect that exemption was available to those intravenous fluids, which are used for sugar, electrolyte or fluid replenishment and such clarification, as per various judgments is deemed to have retrospective effect. 4. Show cause notices were issued to the petitioner/company vide Annexure P-1A to P-AD, dated 10-4-2006 on the ground that intravenous fluids manufactured by the petitioner do not fall under any of the three categories of intravenous fluids, as mentioned in para 6(E) of the show cause notices issued in the months of April, May, June and July of 2005. The petitioner challenged the aforesaid show cause notices on the ground that the notices are without jurisdiction and are contrary to law laid down by a Division Bench of this Court at Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption notification cannot be struck down as arbitrary merely with reference to the meaning of the expression given in another statute or reference book. For the aforementioned reasons, contention raised by learned Counsel for petitioner that impugned notification is arbitrary and is violative of Article 14 of the Constitution, cannot be accepted. So far as argument raised on behalf of petitioner that notification is vague and unworkable and, therefore, liable to be quashed is concerned, the same also does not deserve acceptance. By notification dated 4-5-2000 Entry 47A was added by which intravenous fluids were exempted from payment of Excise duty. However, by notification dated 1-3-2001 (Annexure P-1) definition of intravenous fluids is restricted to those which are used for sugar, electrolyte and fluid replenishment. Thus open-ended exemption has been restricted. Even otherwise, it is well settled in law, if more than one construction is possible, the one which preserves workability and efficacy of the statute is to be preferred over the one which would render the statute sterile. [See : State of T.N. v. M.K. Kandaswami, (1975) 4 SCC 745 and C.S.T. v. Shri Krishna Engg. Co. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal dated 24-6-2004 passed in Final Order Nos. 627-628/2004-NB/(A) [2004 (172) E.L.T. 273 (Tri.-Del.)], but the department in identical matter of the petitioner relating to subsequent period covered by subsequent Notification No. 3/2001-C.E., dated 1-3-2001 had filed an appeal before the Apex Court by way of Civil Appeal No. 2630 of 2005 against the Customs, Excise & Service Tax Appellate Tribunal's Order No. 777/2005-EX, dated 16-9-2005, which was decided by the Supreme Court vide order dated 31-3-2009 [2009 (236) E.L.T. 625 (S.C.)] by which the Tribunal's impugned (777/05-EX, dated 16-9-2005) order was set aside by the Apex Court and the case was remanded back to the Tribunal for fresh decision in terms of observation of the Court on two points, as under :- "The most important aspect to be noted is that in the 2001-2002 Budget, an explanation was inserted in Notification No. 36/2000, clarifying that only such intravenous fluids which were used for sugar, electrolyte or fluid replenishment, were exempted from duty and not other intravenous fluids. This provision in Budget was relied upon by the Department in the show cause notice(s) to deny the benefit of exemption claimed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Notification No. 36/2000-C.E., dated 4-5-2000) has been set aside. However, the demands raised and confirmed by the department from the period 1-3-2001 onwards, has been upheld by the Tribunal. 8. Paragraph Nos. 92 to 99 of the order dated 29-10-2010 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi reads as under :- "92. The fall out of the above discussion is that with effect from 1-3-2001 the exemption benefit, which is available to the Intravenous Fluid for sugar, electrolyte and fluid replenishment, does not extend to the Intravenous Fluid comprising of medicines and drugs like, anti-bacterial, anti-biotic and anti-microbial, having therapeutic properties or functions but is restricted strictly to those meant for the sugar, electrolyte and fluid replenishment only. However, there was no such restriction as far as the period prior to 1-3-2001 and since 4-5-2000 is concerned. The impugned order relating to the period from 1-3-2001, thus call for no interference. They cannot, however, be sustained as far as they relate to the period prior from 4-5-2000 to 1-3-2001 and that the notification dated 1-3-2001 has no retrospective effect. 93 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te into the facts, the writ petitions should not be entertained for the mere asking and as a matter of routine and writ petitioner invariably be directed to respond to the show cause notice taking all highlighted in the writ petition. In the instant case, it is submitted that the authority competent to issue show cause notice and the writ petition is not maintainable. He placed reliance on the decisions of the Apex Court in the case of Special Director & Another v. Mohd. Ghulam Ghouse & Another reported in (2004) 3 SCC 440 = 2004 (164) E.L.T. 141 (S.C.); Union of India & Another v. Kunisetty Satyanarayan reported in (2006) 12 SCC 28 and prayed for dismissal of the writ petition. 10. A mere show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice, the authority concerned may drop the proceedings. 11. It is well settled that ordinarily no writ lies against a show cause notice. A mere show cause notice does not infringe the right of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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