Macrolide Antibiotics Pvt. Ltd. vs Commissioner Of C. Ex. on 12 November, 2002

ORDER

Gowri Shankar, Member (T)

1. The question for consid­eration in this appeal is whether the appellant was entitled to exemption con­tained in Notification 8/96 with regard to roxithromycin that it manufac­tured and cleared during the period 1-9-1996 to 28-2-1997. In the show cause notice issued to it on 1-10-2001 the duty was alleged to be short paid on the ground that the goods were not bulk drugs which were exempted. The rea­son advanced in the notice for its conclusion is that the bulk drug in question did not conform to pharmacopoeia or other standards specified in the second schedule of the Drugs and Cosmetics Act, 1940. Adjudicating on the notice, the Commissioner has denied the exemption,

2. On merits the appellant has no case for the exemption. This issue had been considered by the Tribunal in its decision in Micro Orgochem and Ors. v. CCE, Surat II (Appeal E/2076/01 and others) [2002 (148) E.L.T. 1043 (Tri­bunal)]. Although the notification considered in that appeal was 6/94 and 8/95, the definition of the word “bulk drugs” in all the three notifications is identical.

3. The counsel for the appellant does not seriously challenge the applicability of the ratio of the earlier decision to the facts before us. He how­ever contends that the extended period of limitation will not be available. The ground involved in the notice for invoking the extended period of limita­tion is that the appellant had suppressed from the department the fact that roxithromycin did not conform to pharmacopoeial or other standards. He points out that in the classification list that was filed on 21-8-1995, the appel­lant had claimed the exemption under Notification 8/95 in respect of four products. The three products, apart from roxithromycin for which it claimed the exemption are erithromycin estolate, erithromycin sterate and erithromycin base, all had following letters after them (IP/BP/USP). These letters are the abbreviations of Indian pharmacopoeia, British Pharmacopoeia and United States Pharmacopoeia respectively, The fact that roxithromycin was not indicated to be of the standards of any of the pharmacopoeia by itself not having the (sic) these letters after them clearly communicated to the depart­ment that it was not of pharmacopoeial standard. Therefore, it is not correct to contend that the appellant had suppressed that the fact that roxithromycin was not a pharmacopoeial standard.

4. The departmental representative contends that the exemption that would be applicable to the goods during the relevant period is contained in Notification 8/96. The classification list that the appellant referred to only mentions Notification 8/95. Therefore, there has been suppression in mate­rial facts.

5. We are not able to accept this contention. No doubt, the appellant did not file a self contained classification list during 1996-97. By its letter dated 30-7-1996 submitted for filing of classification list for 1996-97, it in­formed the jurisdictional Superintendent that there was no change in excise duty of any of its finished products in the budget of 1996-97. Even if there is a flaw that the appellant did not specifically claim the exemption under Notifi­cation 8/96, the RT12 return filed by it which would have indicated clearance of roxithromycin on payment of duty under Notification 8/96. Copies of the invoices which would have been attached to these returns would have shown that it had been cleared under relevant exemption notification. This is of course in addition to the fact that this argument is outside the scope of the notice which as we have noticed alleged suppression on the ground of ab­sence of pharmacopoeial standards for roxithromycin. We have already re­corded the contention of the counsel for the appellant in this regard and we find it to be acceptable. If out of the four products of which the exemption was claimed, three were indicated to be of pharmacopoeial standards, and there was no such indication for the fourth, it would be clear to anyone read­ing it that there was no claim made for the fourth product that it was of any pharmacopoeial standards. We therefore do not find sufficient basis for the invocation of the extended period of limitation. The notice therefore must be held to be barred by limitation.

6. The appeal is accordingly allowed and the impugned order set aside.