ORDER
JH Joglekar, Member (T)
1. When the case was called out, the appellant was not present. On all occasions in the past also the appellant had remained absent in spite of notices having been issued. We therefore, proceeded to decide the appeal on merits after hearing Shri B.K.Choubey for the Revenue.
2. The appellant manufactured P or P medicines. In clearing the part thereof, they chose the benefit of Not.No.45/82 CE as amended. This notification provided concessional rate to such medicines ” supplied directly from the factory of the manufacturer to Govt. Departments including Railways, Local Bodies and Hospitals…” 4 show cause notices were issued making two allegations: One was that the medicine was supplied to private Chemists where the payment was also made by the chemists. It was claimed that such supply did not qualify in terms of the Notification and on this ground the differential duty was demanded. The second allegation made was that for certain period the contract with E.S.I.S had expired and on that count also the benefit of the Notification was denied.
3. Before the Commissioner and before us also the claim made was that the supply was made to the chemists specified by the E.S.I.S and therefore, supply made to them for the sake of convenience should not be held against them. A letter dated 7.4.87 from E.S.I.S to the appellant was cited wherein the request was made for continued supply of drugs to all approved chemists.
4. It appears that the E.S.I.S had directed the assessee to make the supply to the chemists as a measure of facilitation. This would avoid the receipt, storage and destruction of the medicines in transist. But such facilities are not provided for in the Notification. The language as reproduced by us above does not permit supply to the third agency on behalf of the Government. As far as this area is concerned, we uphold the denial of benefit of the Notification.
5. As far as the second allegation is concerned, the initial contract was for the period from 1.10.83 to 30.9.85. It was subsequently extended upto 31.3.87 and in terms of the E.S.I.S letter referred to above was again extended upto 30.4.87. Before the Commissioner(Appeals) a letter dated 27.11.86 was also placed to this effect but she refused to look into it on the ground that the same had not been placed before the Asstt.Collector. She termed the production as “new evidence” We are afraid that the Commissioner’s understanding is wrong. Where a contract was subsequently renewed and where the period subsequent to the earlier contract was covered by such extension, the benefit of the Notification would continue. On this observation, we do not find that the Commissioner(Appeals)’ order would sustain on the second ground. The appeal on this aspect is allowed and the issue is remitted back to the jurisdictional Asstt.Commissioner who will examine the contracts and their continuity and then pass appropriate orders deciding the case on merits. The appeal is thus partly allowed.
(Dictated in Court)