FOURRTS (INDIA) LABORATORIES Vs. CCE

JUDGEMENT

(1.) THE appellants are manufacturers of medicaments. During the period of dispute [January - June 1998 for the first appeal and January to December 1997 for the second], they had availed MODVAT credit on inputs which were used in the manufacture of medicaments, which were cleared for export without payment of duty. The department issued show -cause notices asking them to show cause why the credit should not be denied on the ground that the products cleared for export were appropriately classifiable under SH 3003.20 chargeable to 'nil' rate of duty. These notices also proposed penalty. The proposals were contested by the party by submitting that the products cleared by them without payment of duty for export were "P or P medicaments" falling under SH 3003.10 and chargeable to duty and therefore they were entitled to input -duty credit. This plea was not accepted and, consequently, the demand of duty equivalent to the MODVAT credit came to be confirmed against the appellants by the adjudicating authority. The appeals preferred by the party against the orders of adjudication did not succeed. The present appeals are against the orders of the appellate Commissioner.

(2.) WE have heard the learned Counsel for the appellants and the learned SDR for the Revenue. It is submitted by the counsel that the goods cleared for export were admittedly medicaments falling under Heading 30.03 of the CETA Schedule, that these satisfied the requisite ingredients for classification as "P or P medicaments" under SH 3003.10 and that this classification was disapproved by the lower authorities on the sole ground that the trademark under which the medicaments were cleared for export had not been registered with the registering authority under the Trade and Merchandise Marks Act, 1958. It is further pointed out that the application filed for such registration was pending before the registering authority when the Commissioner (Appeals) considered the assessee's appeals and that such application has since been allowed and consequently the above trademark should be deemed to have been registered under the above Act since 2.4.1996 (the date of application for registration). On this basis, it is argued that the ground on which the appellant's product cleared for export was held to be not classifiable under SH 3003.10 is no longer tenable. It is argued that the said goods could only be classified under the said entry and were not to be treated as 'exempted goods' for the purpose of denial of the benefit of Rule 57C of the Central Excise Rules, 1944. In this connection, the learned Counsel has relied on Final Order Nos. 418 and 419/2008 dated 29.4.2008 passed by this Bench in Appeal Nos. E/1258 and 1259/1999, wherein one of the issues considered by this Bench was whether certain medicaments removed without payment of duty for export could be classified under SH 3003.10 and whether such goods could be treated as "exempted final products" for the purpose of Rule 57CC(1). The learned Counsel has relied on the said final order for the limited purpose of showing that, where the name on the product or its container is shown to be a brandname registered under the Trade and Merchandise Marks Act, the goods could only be classified as 'P or P medicaments' under SH 3003.10 and, by virtue of such classification, the goods could only be treated as dutiable goods for purposes of Rule 57C. We have heard the learned SDR, who has reiterated the findings of the lower appellate authority. She has, however, fairly acknowledged the fact that the trademark in question stands registered in the name of the appellants with effect from 2.4.1996.

(3.) THE period of dispute involved in this case is after 2.4.1996. Obviously, the medicaments cleared from the appellant's factory for export without payment of duty, were so cleared under a registered trademark and therefore it can hardly be gainsaid that the goods merited classification under SH 3003.10, which carried a rate of duty other than 'nil'. Such goods cannot be treated as 'exempted goods' merely on account of the fact that they were cleared without payment of duty for export. For these findings, the appellants have shown us requisite support from Final Order Nos. 418 and 419/2008 ibid. The MODVAT credit in question was taken on inputs used in, or in relation to, the manufacture of dutiable final products and the same cannot be denied to the assessee.