CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI
Harish Chander, V.P. Gulati, P.C. Jain, JJ.
Agam and Gem Laboratories -Appellant
Versus
Collector of Central Excise -Respondent
Order No. 658 of 1988-C Appeal No. E/644 of 1985-C, 658 of 1988, 644 of 1985
Decided On : 29-08-1988
P.C. Jain, Member (T)
1. Brief facts of the case are that the appellants manufacture patent and proprietary (P
2. The learned advocate Shri V. Lakshmikumaran appearing for the appellants has conceded in the beginning that the Notification No. 80/80 dated 19.6.1980 is not avail able to the appellants inasmuch as the value of clearance of the pharmacopoeial medicines ought to have been included, but was not included by the appellants on a certain misunderstanding. He, however, states that there is no deliberate suppression of facts or contravention of any Rule with intent to evade payment of duty calling for invoking the larger time limit of 5 years for demand of duty. For that very reason there is no case for imposition of penalty as well. He urges that pharmacopoeial medicines were admittedly fully exempted under Notification No. 55/75 and, therefore, in view of the uncertain legal position at that time it was doubtful whether such pharmacopoeial medicines were at all excisable goods or not. If they are not treated as excisable goods, there was no case for inclusion of these goods in the declaration which the appellants made for seeking exemption from the licencing control under Notification No. 2/81. He states that this position be came clear only after publication of the judgment of Delhi High Court in the case of Vishal Andhra Industries v. Union of India [1983 ELT 2265 (DELHI)]. On the other hand the learned JDR appearing for the Department points out that this plea has no force. Firstly for the reason that such a plea was not taken by the appellants herein before the adjudicating authority. The plea taken before the adjudicating authority was that pharmacopoeial medicines were treated by them as PP medicines falling under Tariff Item 14E and since they were exempted, they were not included for the purpose of declaration under Notification No. 2/81. Secondly the learned JDR points out that the declaration form (under Item 4 thereof) under Notification 2/81 (available at page 20 of the paper book filed by the Department) envisages "full description of the goods (itemwise) manufactured by the factory ". There is no provision for making declaration of only excisable goods as such. There fore, he urges that the plea of the appellants' learned advocate is not merely an afterthought but also without any substance in the face of clear terminology of the declaration.
3. We have carefully considered the pleas advanced on the aforesaid points from both sid
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