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TMI Blog2024 (12) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Rule 22 of CESTAT (Procedure) Rules, 1982 in the light of NCLT order dated 11 November, 2022 whereby the company has been liquidated. 1.1 The issue on merit involved is the denial of exemption admissibility of Notification No. 12/2012-CE (Sr. No. 108) dated 17.03.2012 in respect of the drugs namely:- 1. Idarubicin hydrochloric acid 2.Doxorubicin hydrochloric acid 3.Daunorubicin hydrochloric acid 4.Epirubicin hydrochloric acid 5.Zoledronic Acid 1.2 The case of the department is that appellant's product is Bulk drug which is covered by description No. (B) of Sr. No. 108 of the table appended to notification, according to which there is a condition that for availing the exemption, the assessee is required to follow the procedure laid down in the Central Excise (removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001 and since the appellant have not followed such condition they are not eligible for exemption. The plea of the appellant is that the appellant's product i.e. drugs covered under description No. (A) of the Sr. No. 108 of the table appended to the notification which does not carry condition as prescribed for description N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 145 (SC) * Excon Bldg. Material Mfg. Co. P. Ltd. Vs. CCE 2005 (186) ELT 263 (SC) * CCE Vs. Sunder Steels 2005 (181) ELT 154 (SC) * CCE Vs. Mewar Bartan Nirman (2008) 231 ELT 27 (SC) * CCE Aurangabad Vs. Bajaj Auto Ltd. 2010 (260) ELT 17 (SC) * Goyal Ispat Limited Vs. CCE Puducherry 2017 (6) GSTL 210 (Tri.- Chennai) * Star Industries Vs. CC reported in 2015 (324) ELT 656 (SC); * Larsen and Toubro Ltd. Vs. CCE reported in 2015 (62) Taxman.com(102) (SC); * Honda Siel Power Products Ltd., reported in 2015 (62) Taxman.com (202) (S.C.); 2.1 He further submits though that the company M/s. Sterlling Biotech Ltd's appeal has been disposed of as abated but they have strong prima facie case on merit. The issue involved is the strict interpretation of the exemption entry, the company M/s. Sterlling Biotech Ltd had been declaring the product description and Notification No. 12/2012-CUS and also the entry Sr. No. 108 in their returns. Therefore, there is no mala fide either on the part of the company or on the part of the present appellant. Therefore, in the nature of the present case, there is charge of aiding or abetting the duty evasion cannot be attributed to the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Notification would be available to the goods. We have taken this view upon strict interpretation of the language used in the description of goods under the relevant entries of the Notification, in terms of the Apex Court's ruling in Gujarat State Fertilisers Co. v. CCE - 1997 (91) E.L.T. 3 (S.C.) and other cases cited by learned DR. In the result, all the appeals filed against the appellate Commissioner's order on merits are bound to succeed." b) In the case of Hetero Drugs Ltd (Supra), this Tribunal has considering the same issue whether the bulk drug and drug is same or otherwise. The relevant part of the order is reproduced below:- "6. We have carefully perused the case records and the submissions by both sides. The dispute involved in the subject case is whether "Lopinavir", an item figuring in List 3 appended to the Notification of the Govt. of India, erstwhile Ministry of Finance (Department of Revenue) No. 21/2002-Customs dated 1-3-2002 is entitled to the exemption in terms of the Sl. No. 47(A) of the Notification No. 4/2006-C.E. The impugned item was cleared as bulk drug without following the procedure prescribed in the rules. We find that there is no definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items Nevirapine and Stavudine figured in List 3 appended to Notification No. 21/2002-Cus. The term 'drug' had to be considered to include bulk drug and formulation, as per the Drugs (Price Control) Rules, both items being bulk drugs were entitled to the benefit of the Notification. 10. In the M/s. Burroughs Wellcome (I) Ltd. case, the Tribunal interpreted the following entries at Sl. No. 43 of Notification No. 11/97 C.E. Sl. No. Chapter or Heading No. or sub-heading No. Description of goods Standard rate Additional duty rate Condition No. 43 28, 29, 30 or 38 The following goods (A) The life saving drugs or medicines (including diagnostic test kits) specified in List 2. Nil Nil -- (B) Bulk drugs used in the manufacture of life saving drugs or medicines at (A) above. Nil -- -- (C) Other life saving drugs or medicines. Nil Nil 7 The appellants had claimed exemption under Sl. No. 43(B) for bulk drugs used in the manufacture of life saving drugs or medicines at Sl. No. 43(A). The life saving drugs under Sl. No. 43(A) were specified under List 2. The said list specified the impugned drugs imported by the appellants therein. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition such as following the procedure of Central Excise (removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001. Therefore, entire basis of the department that such procedure was not followed is not relevant. Since, the duty demand itself is not prima facie sustainable on the company, there is no question of imposing personal penalty on the employee of M/s. Sterlling Biotech Ltd. who is the appellant herein. 4.2 We further find that the issue involved is pure interpretation of the notification. The company M/s. Sterlling Biotech Ltd had been declaring the entire facts about the availment of the notification and declaring in their ER-1 return the product discretion, notification number, Sr. number of the entry. Therefore, there was no suppression of fact or mala fide either on the part of the company M/s. Sterlling Biotech Ltd or on the part of the present appellant. For this reason, also the penalty on the appellant is absolutely unsustainable. The appellant have relied upon the decision of S K Shah- 2009 (245) ELT 48 Hon'ble Gujarat High Court wherein on the issue of interpretation of notification personal penalty under Rule 26 was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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