TMI Blog1992 (10) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ise leviable thereon. This Notification No. 55 of 1975 was amended on March 1, 1978 by Notification No. 62 of 1978 and certain additional items were introduced in the Schedule. Item No. 19 reads as follows : "19. All drugs, medicines, pharmaceuticals and drug intermediates not elsewhere specified". 2. The petitioners claimed that Citric Acid I.P. was manufactured strictly in accordance with the standards prescribed under the Indian Pharmacopoeia and was manufactured in terms of the Drug Licence. The petitioners filed fresh classification list on March 4, 1978 claiming benefit of exemption notification. On May 3, 1978 the Superintendent of Central Excise, Nasik, approved the classification list confirming that the Company is entitled to the exemption under the notification. 3. Between January 1, 1979 and April 24, 1981 the Company was served with eleven show cause notices by Superintendent of Central Excise, Nasik calling upon to explain why the claim for exemption should not be rejected and excise duty levied on citric acid under Tariff Item No. 68. In answer to the notices, the Company claimed that Citric Acid is a drug item and in terms of provisions of Notification No. 62/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise department so that the concession can be extended to all the deserving clearances, in accordance with the law. But the citric acid not so used must be denied the exemption, and we reject the appeal in regard to such clearances." The conclusion recorded by Tribunal in paragraph 26 is on the basis that to ascertain whether the duty is leviable on manufacture of citric acid, it is necessary to ascertain the end-use of the product manufactured The Company feeling aggrieved by the conclusion recorded in paragraph 26 of the order passed by the Tribunal, preferred this petition under Articles 226 and 227 of the Constitution of India on May 2, 1985. The petition was admitted on May 3, 1985 and is now set down for final disposal. 5. Shri Pochkhanwala, learned counsel appearing on behalf of the petitioners, submitted that the declaration given by the Tribunal that exemption is available only to manufacture of citric acid which is cleared and used in the manufacture of drug medicines/pharmaceuticals and the Department should have enquired and satisfied about the end-use is contrary to law and not sustainable. The learned counsel urged that it is wholly unnecessary to exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy was available to the Company of filing appeal to the Supreme Court, it is not proper to entertain the petition under Article 226 of the Constitution of India. Normally, we would have acceded to the submission of the learned counsel and directed the petitioners to approach the Supreme Court by filing an appeal, but we are not adopting this course for more than one reason. Shri Desai informed us with reference to the averments made in paragraph 3 of the return shown by Mr. C.T. Dhindale, Assistant Collector of Central Excise, on October 19, 1992 that against the order of the Tribunal holding that Citric Acid is a drug and pharmaceutical, the Department has filed an appeal before the Supreme Court under Section 35L of the Excise Act and the same is pending. On the last occasion when this claim was made that the appeal filed by the Department is still pending in the Supreme Court, we called upon the learned counsel to furnish the number of pending appeal. Shri Pochkhanwala submitted that the claim that appeal is pending in the Supreme Court is entirely incorrect because during last seven years the petitioners had never received any notice from the Supreme Court and it is inconceiva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the submission. It is necessary to reiterate that the impost of excise duty is in respect of manufacture of a product and the liability to pay excise duty accrues as soon as manufactured article comes into existence. The liability to pay duty is not dependent upon the end-use of the product and it is not open for the manufacturer to claim that the liability is dependent upon the end-use of the product and so also to the Department to claim that exemption cannot be claimed till it is established that the manufactured product is used for ultimate manufacture of a drug or drug-intermediate. The advantages of exemption cannot be denied with reference to end-use, unless exemption notification so provides. In our judgment, in view of the decision recorded by this Court in the case of Rakesh Enterprises, the contention of Shri Desai cannot be acceded to. 8. Shri Desai referred to the decision of the Supreme Court reported in 1988 (38) E.L.T. 564 (Collector of C.E., Guntur v. Andhra Sugar Ltd.) to urge that the requirement of end-use though not built into the exemption notification, is not only implied but also becomes imperative in a situation when the product has uses other than drug ..... 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