ORDER
R. Jayaraman, Member (T)
1. This miscellaneous application seeks to modify the terms of the Interim Order No. 591 to 594/94-WRB, dated 26-12-1994 passed by this Bench ordering the applicants to deposit Rs. 15.00 lacs in cash towards duty. The question relates to the allegation that some of the intravenous fluid containers bear the monogram (+) on the bottom of the container and hence they are dutiable We considered the prima facie grounds for time bar of the demand and prima facie held that the demand appears to be time barred. However, in respect of demand which is within the period of normal period of limitation, we directed the applicants to deposit Rs. 15.00 lacs in cash. Shri K.S. Nanavati, the Ld. Advocate, pleads that they were to comply with the order and approached the Bank, who expressed their inability of extending any finance. He refers to the correspondences with the bank filed alongwith the miscellaneous application. Moreover, there is a subsequent development with regard to the issue on merits. The Supreme Court in the case of Astra Pharmaceuticals P. Ltd. v. CCE, Chandigarh -1995 (75) E.L.T. 214 (SC) have held that merely carrying a monogram for identifying the manufacturer cannot be said to be a branded medicine for purpose of Item 14E of the erstwhile CET. In this case, the only allegation is that + (plus) mark was found in the bottom of the container which is alleged to be a monogram. IV Fluids are not branded medicine in terms of the Supreme Court decision. The said ruling is also applicable to the revised Tariff. He, therefore, would plead for acceptance of a Personal Bond covering the duty amount.
2 Shri K.S. Nair, the Ld. SDR, however, points out that there is a factual mistake in the Interim Order, wherein the income of the applicant has been recorded as Rs. 11.00 lacs, which is actually Rs. 11.00 crores. Hence, they cannot plead financial hardship. However, as regards the Supreme Court judgment, he is not sure whether the Department is seeking for a review of the decision. Hence, he would plead for securing the Revenue.
3. After hearing both the sides, we find that even if we are not persuaded to accept that they may not be able to give a bank guarantee for the deposit ordered, we are to take note of the decision of the Supreme Court cited before us. This judgment was not before us at the time of passing the Interim Order. Going by the ratio of the judgment, the applicants seem to be having a prima facie ground in their favour on merits. In the circumstances, we direct the applicants to furnish a personal bond covering the duty amount within a period of four weeks from the date of communication of this order and report compliance within five weeks, failing which their appeal is liable to be rejected. On furnishing the personal bond and reporting compliance, there shall be stay and waiver of recovery of duty amount. This order is in modification of our earlier order passed on 26-12-1994.