REGENT COMPUTRONICS PVT. LTD.

SHAHNAZ AYURVEDICS Appellant

V/S

COMMISSIONER OF CENTRAL EXCISE Respondents

Referred Judgements :-

JUDGEMENT

(1.) This writ petition has been filed for quashing the order dated 14-5-2003 (Annex. 10) passed by the Customs Excise and Gold (Control) Appellate Tribunal, hereinafter called the 'CEGAT', by which the Tribunal has dismissed the appeal against the orders dated 7-8-1998 and 24-11-1998 passed by the adjudicating authority.

(2.) Facts and circumstances giving rise to this case are that the petitioner No. 1 claims that it manufactures Ayurvedic medicines since 1986 after obtaining the licence under the Drugs and Cosmetics Act, 1940 hereinafter called 'the Act 1940' and the Rules framed thereunder, hereinafter called 'the Rules'. In September, 1987, the officers of the Central Excise department conducted investigation in the process of manufacturing of the products by the petitioner No. 1 as well as nature thereof. In 1988, dispute arose as to whether the products manufactured by petitioner No. 1 could fall within the category of Ayurvedic medicines or were in fact Cosmetics used for the care and condition of the skin and hair, and were liable to duty under the Central Excise Tariff Act, 1985, hereinafter called the 'Act 1985'. For that purpose, the provisions of Section 11A of the Central Excise Act, 1944, hereinafter called 'the Act 1944' were invoked and the matter was also examined as to whether the petitioner No. 1 had suppressed/concealed required informations/materials in that regard. After completing the inquiry required under the law, the Revenue accepted the plea of the petitioner No. 1 vide order dated 29-8-1989 passed by the Additional Commissioner, holding that the said products were Ayurvedic medicines and not Cosmetics. It was further held that as no material facts were suppressed by the assessee, provisions of Section 11A of the Act 1944 could not be invoked and proceedings initiated vide show cause notice dated 7-3-1988 were dropped. Assessee was allowed clearance of its products under Chapter 30 of the Tariff Act, 1985, as Ayurvedic medicines. Again, the same controversy arose and the proceedings initiated by the show cause notice dated 14-7-1988, were dropped vide order dated 29-1-1992 by the Assistant Commissioner holding that products of the assessee were Ayurvedic medicines and could not be classified as Cosmetics. In 1994, the Classification Lists and Price List along with questionnaire were furnished by the assessee, as required under the provisions of Rules 173B and 173C of the Central Excise Rules, 1944, framed under the Act 1944, hereinafter called the "Rules 1944". Same were provisionally approved vide order dated 26-8-1994 by the "Assistant Commissioner, Central Excise, MOD-II, New Delhi and finally vide order dated 29-9-1994. The products stood classified under Chapter 30 and not Chapter 33 of the Tariff Act 1985, holding the same to be Ayurvedic medicines and not Cosmetics. Similar remained the case regarding the other establishments in NOIDA, wherein the classification was approved under Chapter 30 of the Tariff Act 1985 by the Assistant Commissioner provisionally vide order dated 1-9-1994 and finally vide order dated 2-12-1994. Again, assessee was served with show cause notices dated 28-2-1997 1-4-1997 and 1-7-1997 regarding the same controversy and the authority, after adjudicating the matter, i.e. Commissioner of Central Excise (Adjudication), on 7-8-1998 passed the following order :"( 1) As the facts establish that duty was evaded by wilful mis-statement and suppression of facts I upheld invocation of the extended period of limitation in terms of the proviso to Section 11A(1) of the Central Excise Act, 1944 and confirm the demand of duty amounting to Rs. 3,68,04,850/( Rupees Three crores, sixty-eight lakhs, four thousand, eight hundred and fifty only) on M/s. Shahnaz Ayurvedics, Okhla Industrial Area, New Delhi & duty demands of Rs. 4,80,84,599/( Rupees Four crores, eighty lakhs, eighty-four thousand, five hundred and ninety-nine only) and Rs. 92,39,773/-(Rupees Ninety-two lakhs, thirty-nine thousand, seven hundred and seventy-three only) on M/s. Shahnaz Ayurvedics, Noida. I also hold that interest is recoverable from them under Section 11AB of the Central Excise Act, 1944. (2) I impose penalties equivalent to the duty determined under Section 11A(2), as indicated above, amounting to Rs. 3,68,04,850/- (Rupees Three crores, sixty-eight lakhs, four thousand, eight hundred and fifty only) on M/s. Shahnaz Ayurvedics, Okhla Industrial Area, New Delhi and Rs. 4,80,84,599/- (Rupees Four crores, eighty-lakhs, eighty-four thousand five hundred and ninety-nine only) and Rs. 92,39,773/- (Rupees Ninety-two lakhs; thirty-nine thousand, seven hundred and seventy-three only) on M/s. Shahnaz Ayurvedics, Noida under the provisions of Section 11AC of the Central Excise Act, 1944. (3) I impose a penalty of Rs. 25 lakhs (Rupees Twenty-five lakhs only) on M/s. Shaherb Cosmetics, under Rule 209A of the Central Excise Rules, 1944. (4) I impose a penalty of Rs. 50 lakhs (Rupees Fifty lakhs only) on M/s. Shahnaz Husain under Rule 209A of the Central Excise Rules, 1944".

(3.) Being aggrieved, assessee preferred appeals No. E/2787, 2925, 2926, 2927 and 2928 of 1998-NB-(C) before the CEGAT, which have been disposed vide impugned judgment and order dated 14-5-2003 (Annex. 10). By the said impugned order, the learned Tribunal set aside the order of interest only so far as the first clause is concerned. The second clause was modified to the extent that it was partly set aside imposing penalty on petitioner No. 2 under Rule 209A of Rules 1944 as having dealt with the excisable goods and as the same was not liable to confiscation. No interference was made with Clause (3) of the order. However, the 4th clause of the order imposing the penalty of Rs. 50,00,000/- on assessee under Rule 209A of the Rules 1944 was set aside. By the same impugned order, 8 cross-appeals of the Revenue, on the ground that assessee was liable to pay the excise duty on the price of the products after including the excise duty, sales tax and other taxes, etc., were dismissed. Hence this petition.

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SHAHNAZ AYURVEDICS Vs. COMMISSIONER OF CENTRAL EXCISE

Referred Judgements :-

JUDGEMENT

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