COMMISSIONER OF CENTRAL EXCISE Vs. OBOI LABORATORIES

JUDGEMENT

(1.) These appeals of the Revenue challenge the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Regional Bench, at Mumbai dated 3 February 2005. Ms. Shah appearing on behalf of the Revenue in support of these appeals submits that though these appeals are admitted on substantial question of law formulated in this Court's order dated 10 January 2006, the question going to the root of the controversy is whether products of the respondent-assessee are proprietary classifiable as patent or proprietary medicaments for they are solely generic drugs therefore, classifiable as such. She submits that so long as this issue has not been addressed, it would be possible to assume that the final product is attracting Nil rate of duty. Thus, the issue of classification and the duty liability are inter connected and one cannot be isolated from the other. Even for determination of the issue as to whether the assessee is eligible for Modvat Credit, classification of the product proprietary medicaments is important, that will have to be addressed.

(2.) Ms. Shah also submits that the Tribunal relied upon its own order passed by its Chandigarh and Delhi Bench. However, there is no denial of the fact that the assessee and the respondent before us had proceeded against the department's stand which was accepted by the CESTAT. Thus, in the case of this very assessee, the Tribunal took a view in favour of the Revenue. Reliance is placed by her on a copy of the order of the Tribunal passed in the case of the respondent, 2001 132 ELT 238. It is claimed that though the issue is determined, the respondent's stand is accepted by the assessee.

(3.) With the assistance of Ms. Shah we have perused the entire paper book. We have also perused the show cause notice issued by the Revenue. We find that the Tribunal had passed a very short order at Page 69 and 70 of the paper book which reads as under: