ORDER
S.D. Jha, Vice -President (J)
1. The question for decision in this batch of appeals, arising out of the same impugned order, is benefit of exemption in respect of additional duty (CVD) in terms of Notification 55/75-C.E., dated 1-3-1975 as amended by Notification 62/78-C.E., dated 1-3-1978 or successor Notification 234/82-C.E., dated 1-11-1982 on the goods “Sorbitol” an intermediate drug imported by the appellants.
2. The Assistant! Collector of Customs rejected the appellants claim for refund on the grounds that the appellants are not a drug manufacturer nor have they produced any evidence to show that “Sorbitol” is a drug intermediate. In some cases he also held that there was no evidence as to actual use. The Collector of Customs (Appeals), Bombay held that “Sorbitol” does not fit in the description intermediate drugs and dismissed the appeals. Hence these appeals to the Tribunal.
3. At the hearing of the appeals Shri B.B. Gujral, learned advocate for the appellants relied on the following two decisions of the Bombay High Court –
(1) Rakesh Enterprises and Anr. v. Union of India and Anr. -1986 (25) ELT 906 (Bombay),
(2) Kumar Prabhulal Shah and Ors. v. Union of India and Ors. – 1987 (28) ELT 193 (Bom.),
and submitted that the Hon’ble Bombay High Court in Kumar Prabhulal Shah case had held “Sorbitol” solution to be intermediate drugs eligible to benefit of exemption under Notification 55/75-C.E., dated 1-3-1975. He drew particular attention to para 7 of the decision which recites that an earlier decision in Rakesh Enterprises case was followed by the High Court in Writ Petition No. 2190 of 1982, decided on August 13, 1986 in respect of additional duty upon “Sorbitol”. Drawing attention to the decision of Rakesh Enterprises case (para 5 of the decision) he submitted that according to the decision it was not necessary to establish that drug intermediate is actually so used. All that is necessary for the purpose of claiming exemption under the notification is to show that goods in respect of which exemption is claimed is drug or drug intermediate. He submitted that Notification 234/82, dated 1-11-1982 was only a successor notification with no material difference and the decision would equally apply to this notification. He further submitted that appellants in fact held a drug licence from Food and Drugs Administration of Maharashtra State though they were not actual manufacturers.
4. Shri Sundar Raj an, JDR submitted that the Bombay High Court decisions had been challenged before the Division Bench of the Bombay High Court as also in Supreme Court. He also urged that the appellants did not held L-4 licence for manufacture of drugs. They were only traders. He reiterated the contentions as found in the order of the lower appellate authority as also those urged before the Bombay High Court when it took the two aforesaid decisions. He, however, agreed that if the Bombay High Court decisions in the two precedents cited above were followed “Sorbitol” imported by the appellants would be eligible to benefit of exemption under the notifications.
5. So far as Tribunal is concerned there would appear no reason not to follow the Bombay High Court decisions. Following the same “Sorbitol” imported by the appellants is held to be drug intermediate eligible to benefit of exemption in respect of additional duty under the two notifications referred to above.
6. The appeals are allowed in the foregoing terms with consequential relief to the appellants.