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TMI Blog2019 (10) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... lease for manufacture of vaccine. During the period April 2008 to April 2009 vaccine attracted nil rate of duty. The vaccine manufactured by M/s Panheber Biotec Pvt. Ltd. was entirely supplied to the appellant. During the scrutiny of the statutory records of the appellant it had been noticed by the Department that quantities of vaccine manufactured and cleared supposedly by M/s Panheber Biotec Pvt. Ltd. have been entered into RG-1 register of the appellant and clearances have been shown in the appellants records. The Department therefore entertained a view that it is only the appellant who is manufacturing the vaccines which is nil rated for central excise duty and the appellant is not maintaining separate statutory record for Cenvat credit which have been availed on manufactured and exempted goods. 2. Entertaining the above view, the Department had issued a show cause notice dated 17/12/2012 whereunder the provisions of Rule 6 (3) of the Cenvat Credit Rules, 2004 have been invoked and the appellant have been asked to reverse back the Cenvat credit equivalent to 10% of the total turnover of exempted goods namely vaccine cleared by them from their factory premises. Accordingly, a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n compliance to the above-mentioned final order of this Tribunal has adjudicated the matter again vide its order-in-original No. 33/CE/CHD-II/2017 dated 18/05/2017, whereunder the Commissioner have again confirmed the demand of Cenvat credits under Section 11A readwith Rule 14 of the Cenvat Credit Rules equal amount of the penalty has also been imposed as well as the interest as per the provision of Section 11AA of Central Excise Act, 1944 has also been confirmed. 5. The appellant is before us in the second round of the litigation against the above-mentioned impugned order-inoriginal. 6. The learned Advocate appearing for the appellant submitted that M/s Panheber is a separate legal entity having necessary drug manufacturing license dated 23 September 2002 issued by the Drug Controller General of India for manufacture of vaccine. It has further been mentioned that all the necessary documents, such as, Memorandum and Article of Association of M/s Panheber/Panera Biotec Pvt. Ltd., the certificate of incorporation by the Deputy Registrar of Companies, the drug manufacturing license as well as a letter dated 06/06/2007 whereunder a permission has been granted to M/s Panheber Biotec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, we feel that it will be appropriate to first refer to the earlier order of this Tribunal dated 21 September 2015 whereunder the Adjudicating Authority had been directed by this Tribunal that to verify whether M/s Panheber Biotec Pvt. Ltd. is a separate entity who was engaged in manufacture of the vaccine or not. We find from the impugned order-in-original that the learned Adjudicating Authority has called for a report from the concerned Jurisdictional Assistant Commissioner. The Jurisdictional Assistant Commissioner vide his letter No. V (13) 13 & 28/D/Panacea/DB/15/2014 dated 10/02/2017 submitted his report wherein he has reported as under :- "3.4.1 that on further perusal of the records available with his office, it has been observed that the production and clearance of "Haemophilus Influenzae Vaccine" was shown in ER-1 returns of M/s Panacea Biotec Ltd. Lalru and which was also shown in VAT returns for the period 2008-2009 filed with VAT Department as a stock transfer to M/s Panacea Biotec Ltd. Okhla New Delhi and M/s Panacea Biotec Ltd. Vill. Malpur, Baddi, whereas to manufacture the vaccine, the Drug License was issued by State Drugs Controlling and Licensing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing manufactured by the appellant on the strength of vaccine manufacturing license issued by the competent authority to M/s Panera Biotech. 13. It is a matter of the common sense that any independent manufacture need to have a independent power connection of electricity or sub-meter for supply of electricity etc. It is surprising that the appellant have not been able to produce any evidence to prove that M/s Panheber/Panera Biotec Pvt. Ltd. existed on their premises independently and they had their own independent electricity connection or sub-lease connection from the main unit of M/s Panacea Biotec Ltd. We take note of the fact that no goods can be manufactured without utilization of electricity/power and from the entire record of the appeal and submissions made by the appellant, we do not find any iota of evidence to indicate that M/s Panheber/Panera Biotec Pvt. Ltd. had independently utilized power for manufacture of vaccine. 14. We also find that as per the contract, in case M/s Panheber/Panera used the facilities of machinery, equipment, etc., they would pay charges at the rate of Rs. 3 lakhs per day to the appellant. It has been pointed out to us that and no payment have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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