WIN MEDICARE LTD. Vs. CCE

JUDGEMENT

(1.) THE appellants are manufacturers of pharmaceutical products and are availing the facility of modvat credit on inputs used in or in relation to such manufacture. Being governed by the provisions of the Drugs and Cosmetics Act, they are required to destroy those medicines which have out lasted the period of expiry.

(2.) The appellants, therefore, by letter dated 14.1.1997, applied to the jurisdictional Commissioner of Central Excise for permission for destruction of certain quantity of medicines after the expiry date thereof. The Range Supdt. of Central Excise, by letter dated 16.4.1998, informed the appellants that the Commissioner had given his approval for destruction of the goods subject to the condition that any modvat credit taken on the inputs used in the manufacture of such goods should be reversed. Subsequently, by a spate of letters sent by the appellants from time to time, the Commissioner was requested to re -consider (and dispense with) the above condition for reversal of modvat credit. It appears that such repeated requests of the party were not heeded. Ultimately, by letter dated 19.4.1999, the appellants virtually staked a legal claim before the Commissioner on the basis of Trade Notices and case law. This claim was to the effect that the modvat credit taken on inputs used in the manufacture of final products was not deniable on the ground that the final products were subsequently lost or destroyed. Subsequently, the appellants received letter dated 26.7.1999 of the Assistant Commissioner (Tech.) of Central Excise, which communicated that the Commissioner was pleased to grant permission for remission of duty on the destroyed goods under the second proviso to Rule 49(1) of the Central Excise Rules subject to the condition that the modvat credit taken in respect of the inputs used in the manufacture of the said destroyed goods would have to be reversed. The present appeal is directed against the decision of the Commissioner as conveyed through the Assistant Commissioner's letter dated 26.7.1999. During the pendency of the appeal, it appears, the Bench wanted to examine the impugned order of the Commissioner. Accordingly, the appellants applied to the Commissioner for a copy of the order passed by him as communicated through the Assistant Commissioner's letter dated 26.7.1999. This application of the party was responded by way of letter dated 19.12.2000 of the Deputy Commissioner (Tech.) of Central Excise. This letter only states that the order of the Commissioner has already been communicated to the party as per the Assistant Commissioner's letter dated 26.7.1999. Copies of appellant's application dated 13.11.2000 addressed to the Commissioner and the Commissioner's response by way of the Deputy Commissioner's letter dated 19.12.2000 have been brought on record, today, by the Counsel for the appellants. Heard both sides.

(3.) LD . JDR Shri A.K. Jain opposes the above arguments. His submission is that this appeal itself is not maintainable inasmuch as the decision of the Commissioner, challenged in this appeal, is an administrative one. Only an order passed by the Commissioner as an adjudicating authority can be appealed against before the Tribunal. Such is not the case here. An order passed under the second proviso to Rule 49(1) is only an administrative order and the same is not appealable to the Tribunal. Ld. JDR, therefore, prays for rejecting the appeal as not maintainable. It is, however, fairly conceded by him that any order of the Commissioner under the second proviso to Rule 49(1) must be in writing.