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Carewell Pharma V/S Commissioner of Central Excise, Chennai-IV

    Appeal No. E/20/2009 (Arising out of Order-in-Appeal No. 26/2008 (M-IV) dated 31.07.2008 passed by the Commissioner of Central Excise (Appeals), Chennai) and Final Order No. 40642/2017

    Decided On, 21 April 2017

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, MEMBER

    For Petitioner: P.C. Anand, C.A (Consultant) And For Respondents: L. Paneerselvam, AC (AR)

Judgment Text

1. Appellants are engaged in manufacture of Patent or Proprietary Medicaments and were clearing the goods affixing the brand name of their distributor. The department was of the view that appellant is not eligible to avail the SSI Exemption Notification No. 8/2003. Show cause notice was issued demanding differential duty of Rs. 3,45,477/- for the period 2001-02 to 2005-06. After due process of law, original authority confirmed the demand along with interest and imposition of equal penalty. Commissioner (Appeals) upheld the same. Hence this appeal.

2. On behalf of appellant, Ld. Consultant, Shri P.C. Anand submitted that the issue stands settled against the appellant by the judgment in the case of CCE Calcutta Vs. Emkay Investments (P) Ltd. rendered by Hon'ble Apex Court reported in: 2004 (174) ELT 298 (SC). He argued that during the relevant period, there was judgment in favour of the appellant and therefore the appellant had affixed the brand name on the bona fide belief that they could avail benefit of SSI exemption even though brand name is of others. It is also pointed out that except an amount of Rs. 257/-, appellant has paid entire duty liability and pleaded that duty demand of Rs. 257/- may be waived and also penalty be set aside.

3. Against this, Ld. A.R. Shri L. Paneerselvam reiterated the findings of the impugned order and submits that appellant is liable to pay entire duty as well as penalty.

4. We have considered the submissions made by both sides. It is seen that the issue stands settled by the Hon'ble Apex Court's judgment rendered in the case of Emkay Investments (P) Ltd. (supra). Following the same, we maintain the order passed by the Commissioner (Appeals) in respect of duty liability. The claim of the ld. Consultant to waive duty portion of Rs. 257/- cannot be considered and therefore is brushed aside. However, ld. Consultant has put forward sufficient grounds to argue that during the relevant period the issue, whether appellant could use brand name of their marketing agency, was contentious and there were decisions in favour of appellant rendered by various High Courts. Therefore, we are of the view that pen

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alty imposed can be set aside. Impugned order is modified to the extent of confirming duty liability along with interest and setting aside penalty. Appeal is partly allowed in the above terms. (Dictated and pronounced in open court.)