SURGI PLAST LTD Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THE issue involved in this appeal filed by M/s. Surgi Plast Ltd. is whether the benefit of notification No. 339/86 dated 11 -6 -1986 is available to the disposable syringes manufactured by them. The appellants have requested the appeal to be disposed of on merits! We, therefore, heard Shri Ashok Kumar, learned D.R., and perused the records.

(2.) SHRI Ashok Kumar, learned D.R. submitted that Sl. No. 9 of Notification No. 339/86 exempts "Disposable and Non -disposable Canula for Aorta Veins Cavae and similar veins and blood vessels": that the product manufactured by the appellants was not disposable or non -disposable Canula as they were manufacturing Disposable Syringes. According to the D.R. Syringes consist of barrel, plunger and needle (canula), and as such benefit of notification is not available to the product manufactured by the appellants. Learned D.R. also mentioned that the decision of the Supreme Court in the case of CCE, Baroda v. Cotspun, reported in 1999 (113) E.L.T. 353 (S.C.) will not be applicable as classification list was not approved. Further, they had filed the classification list claiming the benefit of exemption and had also given an undertaking to produce within 3 months certificate from the Director General of Health Services that the product manufactured by them is covered by the Notification. Learned D.R. further mentioned that as they failed to submit the certificate a show cause notice was issued to them demanding the duty which was followed by another show cause notice for demanding duty for the subsequent period. Regarding availability of Modvat credit, he drew our attention to the impugned order in which the Collector (Appeals) has given his finding that the Modvat credit cannot be claimed under Rule 57H of the Central Excise Rules as transitional Modvat credit is permissible only in respect of those inputs received before the receipt of dated acknowledgement as are available for verification before the credit of duty can be allowed. The Collector (Appeals) further observed that in the appellants case such inputs cannot said to be such as were available for verification on the date of application or on the date of adjudication.

(3.) WE have considered the submissions of the learned D.R. and perused the records. The appellants have mentioned in their memorandum of appeal that according to New Lexicon Webster's Dictionary, canula means, a tube used for insertion into a duct or cavity for the purpose of withdrawing fluid or injection medication into the body; that the syringes manufactured by them used for injecting fluid into the body and as such product ought to have been considered as canula. We observe that Sl. No. 9 of the Notification exempts only disposable and non -disposable canula for aorta veins cavae and similar veins and blood vessels and not the disposable syringes. The product manufactured by the appellants in disposal syringes which are not exempt by the Notification and as such benefit of Notification has been rightly denied to them. As far as availability of Modvat credit is concerned this Tribunal has been consistently holding that Modvat credit cannot be denied simply for non -filing the declaration in cases where initially finished product was considered to be exempted from payment of duty. The appellants would be eligible for the availment of Modvat credit subject to the condition that they satisfy the Asstt. Commissioner about the availability stock of inputs at the relevant time stock for the purpose of Rule 57H and also satisfy the Asstt. Commissioner about their duty paid nature. Subject to this appeal is rejected.