Oscar Remedies P. Ltd. vs Commissioner of Central Excise and Another

Hemant Gupta, J.—The present appeal u/s 35G of the Central Excise Act 1944 (for short "the Act") arises out of an order passed by the Customs, Excise and Service Tax Appellate Tribunal (for short "the Tribunal") dated September 26, 2012 (annexure A5), whereby on an application for waiver of the amount of pre-deposit of duty, the appellant was directed to deposit an amount of Rs. 7,67,189. Such order was passed relying upon an order of the hon''ble Supreme Court in Commissioner of C. Ex., Ahmedabad Vs. Ramesh Food Products, We find that the following question of law arises for consideration:

Whether the hon''ble Tribunal is correct in placing reliance upon the decision of the apex court which was in the context of an altogether different notification and which already stands distinguished by the hon''ble Tribunal in the proceeding for the earlier period in the appellants'' own case?

The appellant is engaged in the manufacturing of pharmaceutical products under their own brand name as well as manufacturing the medicaments on which the brand name of some other person is affixed. The assertion of the appellant is that the medicaments bearing the brand name of the appellant-company are cleared without payment of duty by availing of the benefit of Notification No. 8/2003-CE, dated March 1, 2003 and that the appellant is not availing of any Cenvat credit of duty paid on inputs used in or in relation to manufacture of such medicaments. But the appellant is claiming the benefit of Cenvat credit of duty paid on inputs used on the goods manufactured under the brand name of some other person. It is contended that the question of duty in these circumstances has been examined by the Tribunal for the subsequent period in the assessee''s own case in an order dated May 13, 2010, wherein the judgment in Commissioner of C. Ex., Ahmedabad Vs. Ramesh Food Products, was considered and demand of duty denying the benefit under the notification was found to be unsustainable.

Learned counsel for the appellant contends that the said order was referred to before the Tribunal, but the same has not been taken note of while deciding the application for waiver of the amount of pre-deposit. The application for pre-deposit has been examined in the light of the judgment in Commissioner of C. Ex., Ahmedabad Vs. Ramesh Food Products, whereas such judgment has been considered in the assessee''s own case in a judgment reported as (2010) 27 STT 218

The fact that the said judgment was relied upon by the appellant is evident from paragraph 3 of the order. Such judgment finds mention at Sl. No. A of the judgments referred to by the appellant. However, the said judgment has not been considered while deciding the application for pre-deposit. Since in the assessee''s own case, the judgment of the Supreme Court has been examined by the Tribunal in respect of subsequent period and the claim of the Revenue in Commissioner of C. Ex., Ahmedabad Vs. Ramesh Food Products, has been found to be unsustainable, we find that the Tribunal was not right in relying upon the decision in Commissioner of C. Ex., Ahmedabad Vs. Ramesh Food Products, when the same has been examined by the Tribunal in the assessee''s own case.

Consequently, while answering the question in favour of the assessee, we set aside the order passed by the Tribunal on September 26, 2012 and remit the matter back to the Tribunal for passing a fresh order in the light of the observations made above.

The parties are directed to appear before the Tribunal on July 17, 2013 for further proceedings in accordance with law. Disposed of.