GERMAN REMEDIES LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The Appeal filed by M/s. German Remedies Ltd. is posted today for hearing the stay application. As the issue involved is in very narrow compass, we stay the recovery of the entire amount of duty and penalty and take up the Appeal itself for disposal with the consent of both the sides.

(2.) Shri M.P. Devnath, learned Advocate, submitted that the demand has been confirmed against the Appellants on the ground that after importing Somatosan injection Fludara injection from foreign supplier, they had carried out a process of labeling and re -labeling of packing from bulk to retail to render the product marketable invoking Note 5 to Chapter 30 of the Schedule to the Central Excise Tariff Act. He, further submitted that the foreign supplier have been marketing the impugned injections without the indication of MRP; that in other words, the products were being marketed by the original manufacturer, and therefore, the process undertaken by the Appellants cannot be treated as to render the medicine marketable to the consumers; that the activities carried out by them is only showing the MRP in respect of imported injections; that in respect of Fludara injection, they had shown the name of the importer, MRP etc. and indicated a warning on the literature of the injections; that they had not undertaken repacking of the medicine from bulk pack to retail pack; that the Somatosan injections have been imported in 3 mg. ampoules and at the time of importation, each ampoule was placed in the plastic tray which is packed in small carton; that the small carton, in which one tray is packed, contained product literature giving information for use, composition, indication, side effect etc.; that the small carton was printed with name of the medicines, composition, instructions etc. for use, name of the manufacturer etc.; that at the time of importation itself the carton was printed with their name and address; that similarly Fludara injection was in vials containing 5 mg of medicine at the time of importation; that, therefore, they have not undertaken any activity of packaging from bulk pack to retail pack; that it has been held by the Tribunal in the case of Commissioner of Central Excise, New Delhi v. Panchsheel Soap Factory, 2002 (145) ELT 527 that activity of putting the sticker on the product in order to comply with the legal requirement of other laws in India, does not satisfy the criterion laid down in Note 6 to Chapter 34; that this decision was followed by the Tribunal in the case of Commissioner of Central Excise, Delhi -I v. Avon Beauty Products (I) Pvt. Ltd., 2002 (83) ECC 522 (Tri) : 2002 (53) RLT 917 wherein it has been held that affixing a stioker indicating name of importer and MRP as per requirement under Standards of Weight and Measurements Act does not amount to labeling/re -labelling and does not amount to manufacture in terms of Note 4 to Chapter 33 of the Tariff. He also mentioned that the Appeal filed by the Revenue against decision in Avon Beauty Products case has been dismissed by the Supreme Court on 31.1.2003 in Civil Appeal No. D -25147/2002. Reliance has also been placed in the case of Commissioner of Central Excise, New Delhi v. Manisha International Pvt. Ltd., 2003 (54) RLT 890 CEGAT.

(3.) Countering the arguments Shri Jagdish Singh, learned Departmental Representative, submitted that the Commissioner in the impugned Order has given a specific finding that the Appellants have repacked the goods from bulk pack to retail pack; that it is mentioned in the impugned Order that description given in the Bills of Entry was "Somatosan 3 mg" and the quantity shown in Nos. 750 and net weight as 9 kgs; that it is no where mentioned in the Bill of Entry that the goods were in smaller cartons and further packed in bigger cartons, that the invoice also did not in any way give any such details to show that the goods were imported in the retail pack; that mere mention of goods as "Somatosan 3 mg" does not in any way convey that the goods is packed in plastic tray and it is put up in bigger corrugated box for the purpose of transportation. He, therefore, contended that Note 5 to Chapter 30 would therefore be applicable and the process of repacking from bulk packs to retail packs will amount to manufacture.