ORDER
K.S. Venkataramani, Member (T)
1. This appeal is directed against the order dated 11-12-1987 passed by the Collector of Customs (Appeals), Bombay by which he had upheld the order of the Asstt. Collector of Customs, Air Cargo Complex, Bombay dated 25-4-1987. The appellants herein imported Cimetidine which they cleared on payment of Customs duty and additional duty of Customs (CVD). Thereafter they filed the refund claim for reassessment of the goods for CVD purposes claiming the benefit of Exemption Notification 234/82-CE which was rejected by the Asstt. Collector on the ground that the goods were included in the Pharmacopoeia only on and after 1-1-1985 whereas they had been imported and cleared before 31-12-1984. While rejecting the appeal against the Asstt. Collector’s order the Collector (Appeals) observed that he had referred the matter to the Asstt. Drugs Controller, Bombay who confirmed that the goods were not appearing in any Pharmacopoeia before 1-1-1985.
2. Shri B.S. Gujral, Manager Imports of the appellants’ firm appearing for the appellants contended that Cimetidine is included in the Martindale The Extra Pharmacopoeia, June, 1977 Edition which gives the specification and Pharmacopoeial standards of this Cimetidine, its therapeutic value and its end use as a potent histamine H2-receptor antagonist. It is used in gastric and duodenal ulcer, and in other conditions associated with gastric hyperacidity. Therefore, there is sufficient evidence to show that the Cimetidine is a bulk drug conforming to Pharmacopoeial standards and fully satisfies the definition given in Exemption Notification 234/82 and hence, entitled to the exemption. He also referred to the Merck Index 1983 Edition which conforms the entry in the Martindale The Extra Pharmacopoeia above. He also pointed out that when once Customs classified the goods under Heading 29.01/45(13) as Pharmaceutical Chemical having therapeutic and prophylactic properties they cannot say that this is not a bulk drug only for the purpose of Central Excise Duty Exemption Notification 234/82. He further referred to Notification 14/88-Cus., dated 1-3-1988 which gives exemption to drug intermediates used in the manufacture of bulk drugs and Cimetidine is mentioned at S. No. 25 of that notification indicating as a bulk drug.
3. Shri Chandrasekharan, learned D.R. drew our attention to the Collector (Appeals) findings that the goods, namely, Cimetidine was not included in the Pharmacopoeia at the time of its import and clearance but only subsequently, as has been ascertained by the departmental authorities. Hence, it has rightly been denied the exemption.
4. We have carefully considered the submissions made by Shri Gujral of the appellants’ firm and the learned SDR. The appellants had claimed refund of the CVD on the ground that Cimetidine is eligible for exemption under Notification 234/82 at Section. No. 21. This notification exempted goods of the description specified in the Schedule thereto falling under Item 68 of Central Excise Tariff from Central Excise duty. Section. No. 21 of the Schedule reads “All bulk drugs medicines not elsewhere specified”. Explanation I to the notification says, “In this Notification bulk drugs means any chemicals or biological plant product conforming to Pharmacopoeial standards used for the diagnosis, treatment, mitigation or prevention of diseases in human beings or animals and used as such or as an ingredient in any formulation.” The lower authorities while assessing the goods under Item 68 denied the exemption holding that Cimetidine was not included in the Pharmacopoeia at the time of import and clearance. But the appellants before us has shown with sufficient evidence that Cimetidine had been included in the Martindale The Extra Pharmacopoeia 27th Edition in which among its uses it has been mentioned that Cimetidine is a potent histamine H2-receptor antagonist and its main action is to inhibit gastric acid secretion and that it is used in gastric and duodenal ulcer, and in other conditions associated with gastric hyperacidity. Further evidence is the Merck Index which is an encyclopedia of Chemicals, Drugs and Biologicals which gives the use of Cimetidine on the same lines as in the previous literature cited supra. These are standard works on chemicals and drugs. The Explanation-I to the Notification also indicates that bulk drugs would be any chemical conforming to Pharmacopoeial standards. As we have seen above, Cimetidine does conform to Pharmacopoeial standards. The Explanation also indicates that it should be used for treatment, mitigation or prevention of diseases in human beings. The literature cited above also indicates that it is so used. The appellants have explained that they used Cimetidine as single ingredient formulation in the manufacture of Cimetidine tablet and injection. In view of such an evidence put forth by the appellants, the mere fact that it was included in the Indian Pharmacopoeia only on 1-1-1985 could not be sufficient ground to hold that before that date it was not a bulk drug especially when the Explanation-I to the notification does not indicate that what is required is chemical conforming to Indian Pharmacopoeial standards. In this view of the matter, we hold that the Cimetidine imported is eligible for exemption for CVD purposes in terms of Notfn. 234/82 and accordingly allow the appeal.