FRESENIUS KABI ONCOLOGY LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner challenges an order of Dec. 15, 2015 passed in revision under Sec. 35EE of the Central Excise Act, 1944.

(2.) The petitioner has a licence as a manufacturer of bulk drugs. Among the drugs that the petitioner manufactures are Paclitaxel, Docetaxel and Irinotecan, which are all, apparently, indispensable drugs in the treatment of cancer. The petitioner exported such drugs in bulk quantities to foreign buyers and paid Excise duty thereon by claiming against the Cenvat credit enjoyed by the petitioner at the relevant time. The petitioner subsequently applied under Rule 18 of the Central Excise Rules, 2002 for rebate of the duty paid. At the lowest level, the petitioner succeeded. The department went up in appeal and the relevant Commissioner reversed the order on the ground that the drugs exported by the petitioner in bulk quantities were exempted from duty and the petitioner ought not to have been paid any duty thereon to claim rebate thereof. It is such order of the appellate authority, which has been affirmed in the revisional jurisdiction under Sec. 35EE of the said Act by the Central Government, that has been assailed herein.

(3.) The petitioner refers to a notification of March 1, 2006 that granted exemption from duty in respect of certain goods. The relevant Notification No. 4/2006 made out a table specifying the chapter or heading or sub-heading of the tariff items of the First Schedule to the Act; the description of the excisable goods; the exemption or reduced rate of duty payable thereon; and, the condition attached to obtaining the benefit of reduced duty or exemption. There is no dispute that Serial No. 47 of the table under Notification No. 4/2006 is applicable in this case. However, there is considerable disagreement between the petitioner and the department whether clause (A) or clause (B) under the column of description of excisable goods pertaining to the relevant entry would be applicable in this case. It is necessary to extract the table pertaining to the relevant serial number in the present context : <FRM>JUDGEMENT_220_LAWS(CAL)4_2016.html</FRM>