ORDER
V.K. Agrawal, Member (T)
1. The issue involved in this
appeal, filed by M/s. Dabur India Ltd., is whether the benefit of exemption under Notification No. 8/94-C.E., dt. 1-3-94 is available to ‘Juri Tap’ manufactured by them.
2. Shri K.K. Banerjee, learned Advocate, submitted that Serial No. 1 of Notification No. 8/94 exempts from payment of Central Excise duty “All formulations based on the list of bulk drugs specified in the First Schedule to the Drugs (Prices Control) Order, 1987, as amended from time to time” falling under Chapter 30 of the Central Excise Tariff, that the Appellants manufacture ‘Juri Tap’ in which the ingredients used are Quinine Sulphate IP, Ferrous Sulphate IP, Magnesium Sulphate IP and Purified Water IP; that the classification of their product under sub-heading 3003.11 of the Schedule to the Central Excise Tariff Act as ‘Quinine and its salt’ has been upheld by the Tribunal in their own case vide Final Order No. A-874/CAL/98, dt. 12-10-1998; that they have claimed the benefit of Notification No. 8/94 in their classification list No. 10/93-94, dt. 1-3-94 on the ground that Juri Tap is based on “Quinine” which is a bulk drug covered in the First Schedule to the Drugs (Prices Control) Order, 1987 (DPCO); that the Assistant Collector approved the said clarification list; that on appeal filed by the Department, the Commissioner (Appeals), under the impugned order, denied them the benefit of Notification No. 8/94-C.E. on the ground that the name of the drug is to be read with the specific programme associated to them “since this is necessarily a list of bulk drugs…required for the…..National Health Programme….” and that specified end-use is relevant for availing of the exemption. The learned Advocate, further, submitted that if the description of goods as given in Serial No. 1 of Notification No. 8/94-C.E. is read with the meaning of ‘bulk drug’ and ‘formulations given in Explanation to the Notification, the impugned product falls within the scope of the said Serial No. 1 as their product is processed out of Quinine which is a bulk drug specified in the First Schedule to the DPCO and the other ingredients added are pharmaceutical aids and inert (inactive) to the therapeutic activity of Quinine and do not interfere with therapeutical or prophylactic activity of Quinine. He also mentioned that Commissioner (Appeals) had relied upon the Trade Notice No. 32-C.E./90, dt. 22-3-90 of Chandigarh Collectorate and Trade Notice No. 34/10, dt. 26-3-90 of Madurai Collectorate which mentioned about the necessity to insist upon end use certificate in order to satisfy that the bulk drugs have actually been put to the use as specified in DPCO, 1987; that these Trade Notices are not applicable as these are in the context of Notification No. 31/88-CE., dt. 1-3-88; that Notification No. 8/94 did not stipulate that the goods should be used for National Health Programme; that this position has been clarified by the Board under Circular F.No. 346/153/88-TRU, dt. 20-11-1988.
3. Shri A.K. Pandit, learned DR countered the arguments by reiterating the findings as contained in the impugned order.
4. We have considered the submissions of both the sides. It is not in dispute that the impugned product ‘Juri Tap’ is a formulation based on the list of bulk drug specified in the First Schedule to the DPCO, 1987. The Commissioner (Appeals) has denied the benefit of Notification No. 8/94-C.E. only on the ground that First Schedule to the DPCO, 1987 contains the list of bulk drugs which are required for National Health Programmes and Quinine is mentioned for ‘National Malaria Eradication Programme’ and the specified end-use is relevant for availing of the exemption. We find substance in the submissions of the learned Advocate that Notification No. 8/94-C.E. does not contain any condition to the effect that the benefit of the Notification will be available only subject to the formulation being used for specified National Health Progamme. The Board vide letter F.No. 346/153/88-TRU, dt. 20-11-1988 has clarified in respect of Notification No. 29/88, dt. 1-3-88 which also exempted “all formulations based on the list of bulk drugs specified in the First Schedule to the DPCO, 1987”. It has been clarified therein that “though, excise duty exemption under Notification 29/88-C.E., dt. 1-3-88 is linked to the First and Second Schedule of the DPCO, the notification does not stipulate that the goods should be used only for National Health Programme. Therefore, denial of the concession solely on the ground that the formulations are not sold in the context of National Health Programme is not justified. Similarly, the insistence of any declaration regarding the use of the formulations for National Health Programme is also not warranted”. The Trade Notices, relied upon by the Commissioner (Appeals) in the impugned order were in respect of Sl. No. 2 of Notification No. 31/88-C.E., dt. 1-3-88 which provided a concessional rate of duty in respect of “Other Bulk Drug” and not even in respect of Sl. No. 1 of Notification No. 31/88 which provided NIL rate of duty in respect of “Bulk Drugs specified under the First Schedule to the DPCO, 1987”. In view of this, the Appellants are eligible to avail exemption under Notification No. 8/94-C.E., dt. 1-3-94 in respect of ‘Juri Tap’. Accordingly, the appeal is allowed.