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TMI Blog2016 (4) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... ble drugs in the treatment of cancer. The petitioner exported such drugs in bulk quantities to foreign buyers and paid excise duty thereon by claiming against the Cenvat credit enjoyed by the petitioner at the relevant time. The petitioner subsequently applied under Rule 18 of the Central Excise Rules, 2002 for rebate of the duty paid. At the lowest level, the petitioner succeeded. The department went up in appeal and the relevant Commissioner reversed the order on the ground that the drugs exported by the petitioner in bulk quantities were exempted from duty and the petitioner ought not to have been paid any duty thereon to claim rebate thereof. It is such order of the appellate authority, which has been affirmed in the revisional jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002) (B) Bulk drugs used in the manufacture of the drugs or medicines at (A) above Nil Nil - 2 The petitioner contends that since the petitioner had a licence to manufacture bulk drugs and the petitioner only deals in bulk drugs, the goods exported by the petitioner were covered under the description of clause (B) pertaining to the relevant entry in the table. The petitioner says that since there was a condition attached to the exemption of duty in such case, the petitioner could not have allowed the goods to be removed from the petitioner's manufacturing facility without the payment of duty thereon. The petitioner claims that since the duty could not have been passed on to the petitioner's foreign buyers, in accordance with Rule 18 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1A) of the said Act, when duty had been paid at the time of export, the exporter was entitled to claim a rebate therefor under Rule 18 of the said Rules. However, the court did not consider in that case whether duty paid by an exporter in a case where duty was clearly not payable would entitle the exporter to claim a subsequent rebate and, thereby, encash the Cenvat credit that may have been built up by such exporter. The petitioner has referred to the rule-making authority under Section 37(2)(xvi) of the said Act and to the two limbs of Rule 18 of the said Rules. According to the petitioner, if an exporter has a choice of not paying the duty payable on any excisable goods at the time of export, merely because it is an export transaction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escription would be exempted from duty. The drugs of the kind that were exported by the petitioner were drugs which were identified in Lists 3 and 4 of the applicable notification. By virtue of the names of such drugs figuring in the lists, they were exempted from duty. Goods under clause (B) of the relevant column pertaining to the applicable entry would be bulk drugs which are used in the manufacture of drugs or medicines or salts or esters covered by clause (A) of the same entry, subject to certificates being issued by the users thereof of such use. In other words, drugs which are already recognized in Lists 3 and 4 have to be regarded as completely exempted from payment of duty and such drugs, merely because they were sold in bulk quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y clause (A) of the description of goods in the relevant entry. It is apposite, in the context, to notice the essence of the revisional authority's order at paragraph 10 thereof: "10. From a plain reading of the above provisions, it is seen that a bulk drug can be used as such or as an ingredient in any formulation. Any bulk drug which features in List 3 or List 4 appended to Notification No. 21/2002-Cus dated 17.03.2002 will be exempted unconditionally. However, any other bulk drug if used further in manufacture of any drugs or medicines listed in List 3 or List 4 is exempted only subject to fulfillment of prescribed condition." There is no doubt that the drugs that the petitioner exported in huge quantities were drugs which were speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat credit built up by the petitioner; which becomes relevant and whether there may have been some mischief afoot, cannot be answered merely on the basis of the adjudication conducted in course of the proceedings under Rule 18 of the said Rules of 2002. It appears that both the appellate and the revisional authorities have taken a view possible on the set of facts. In exercise of the limited superintendence under judicial review at this level, the Court will not supplant its view for that of the administrative authority that is challenged in this jurisdiction. As long as the decision-making exercise is found to be reasonable and fair and the opinion expressed appears to be plausible, the Court will refrain from interfering with the order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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