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TAXAP/769/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 769 of 2011
=========================================================
COMMISSIONER
OF CENTRAL EXCISE& CUSTOMS, VADODARA-I, - Appellant(s)
Versus
M/S
RONALD PHARMACEUTICALS - Opponent(s)
=========================================================
Appearance
:
Ms
MANISHA LAVKUMAR
for
Appellant
None for
Opponent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI 11th November 2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
has challenged the decision of the Tribunal dated 4th
October 2010. Following question have been presented for our
consideration :-
“Whether the
Hon’ble Tribunal is right in dropping the demand of extended period
and dropping the penalty imposed u/s. 11AC of the Central Excise Act,
1944 on the grounds that during the period of dispute, different
interpretations were possible in respect of assessable value of
Physician free samples, inspite of Board’s clarificatory Circular
dated 25.04.2005 which has been upheld by the Hon’ble CESTAT in case
of Blue Cross Laboratories Limited [Supra] and further by the Hon’ble
High Court in case of Indian Drugs Manufacturers’ Association [Supra]
?”
Briefly stated,
facts are that against the confirmation of duty demand and penalty,
respondent-manufacturer approached the Commissioner [Appeals]. The
Commissioner [Appeals] insisted that the manufacturer deposits an
amount of Rs. 13,00,000/= out of the total duty of Rs. 25.93 lacs.
Since the manufacturer could not do so, the appeal came to be
dismissed. He further approached the Tribunal on the ground of
pre-deposit. Tribunal, by the impugned order, finding that
there is a strong prima facie case in favour of the assessee,
made certain observations and remanded proceedings before the
Commissioner [Appeals] to render decision on merits without insisting
on pre-deposits.
Counsel for the
Department Ms. Shah contended that the Tribunal has made observations
which would amount to deciding the main issues in dealing with the
question of pre-deposit, the same ought not to have been done.
Upon perusal of
the order of the Tribunal, however, we notice that the Tribunal had
referred to the decision of Larger Bench in case of Marsha Pharma
Private Limited v. CCE, Vadodara, reported in 248 ELT 687
[Ahmedabad Bench] to observe that in view of confusion in the field
by various decisions, the manufacturer cannot be held guilty of any
suppression or misstatement with an intend to evade duty.
Such observation
of the Tribunal must be viewed in background of the proceedings
before it. What was referred to the Tribunal was the question of
pre-deposit. It was in this background that the Tribunal made
observations indicating that there is a strong prima facie
case in favour of the manufacturer. To our mind, the Tribunal has not
concluded the issue on merits. In fact, the Tribunal desired the
Commissioner [Appeals] to decide the appeal on merits only to waive
the entire pre-deposit, certain observations have been made which
should be treated to be prima facie in nature. Contention of
the counsel for the appellant that the decision of the Larger Bench
would not be of any avail to the manufacturer, surely can also be
examined by the Commissioner [Appeals]. In the result, no question of
law arises, Tax Appeal is dismissed.
{Akil Kureshi, J.}
{Ms. Sonia Gokani,
J.}
Prakash*
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