Per Justice U.L. Bhat :

Respondent is absent in spite of notice but has sent a request for decision of the appeal on merits. We have heard Shri M.Ali, JDR and perused the papers.

2. Respondent engaged in the manufacture of P&P medicines opted for benefit of Notification No. 245/83 and was paying duty on the maximum retail price less the discount allowed by the Notification. However, in respect of one product manufactured by the respondent as a job worker, respondent filed price lists declaring the assessable value as the sum total of the value of raw materials and job charges. After issuing show cause notice and granting an opportunity of personal hearing, the adjudicating authority passed an order directing the respondent to pay duty on the basis of the notification in respect of the medicine manufactured as job worker. This order was set aside by the Collector (Appeals). The department being aggrieved has filed the present appeal.

3. The benefit of Notification 245/83 is available subject to three conditions referred to therein. Clause (iii) states that exemption shall be allowed only if the manufacturer claims exemption under the Notification in respect of all the medicines cleared by him the retail price of which is specified in the said price list. There is no dispute that in respect of the medicines manufactured by the respondent, retail price have been specified in the price list referred to in paragraph 19 of the Drugs Price (Control) order, 1979. That being so, if the respondent desired to obtain the benefit of Notification, the exemption should have been claimed in respect of all those preparations. It is not open for the manufacturer to avail exemption in respect of some specified medicines and to opt out of exemption in respect of certain other specified medicines. However, this does not mean that where the manufacturer avails the benefit of Notification in regard to some specified preparations, the department can compell him to avail the benefit in respect of the remaining preparations. The proper course would be to deny him the benefit of notification in respect of all medicines. The order passed by the Collector (Appeals) is correct. Accordingly, we dismiss the appeal.