1. The appeal filed by M/s. German Remedies Ltd. is posted today for hearing the stay application. As the issue involved is in very narrow compass, we stay the recovery of the entire amount of duty and penalty and take up the Appeal itself for disposal with the consent of both the sides.
2. Shri M.P. Dev Nath, learned Advocate, submitted that the demand has been confirmed against the Appellants on the ground that after importing Somatosan injection, Fludara injection from foreign supplier, they had carried out a process of labeling and re-labeling of packing from bulk to retail to render the product marketable invoking Note 5 to Chapter 30 of the Schedule to the Central Excise Tariff Act. He, further, submitted that the foreign suppliers have been marketing the impugned injections without the indication of the MRP; that in other words, the products were being marketed by the original manufacturer and therefore, the process undertaken by the Appellants cannot be treated as to render the medicine marketable to the consumers; that the activities carried out by them is only showing the MRP in respect of imported injections; that in respect of Fludara injection, they had shown the name of the importer , MRP etc. and indicated a warning on the literature of the injections; that they had not undertaken repacking of the medicines from bulk to retail pack; that the Somatosan injection have been imported in 3 mg ampules and at the time of importation, each ampule was placed in the plastic tray which is packed in small carton; that the small carton, in which one tray is packed, contained product literature giving information for use, composition, indication, side effect etc; that the small carton was printed with name of the medicines, composition, instructions etc. for use, name of the manufacturer etc; that at the time of the importation itself the carton was printed with their name and address; that similarly Fludara injection was in vials containing 5 mg of medicine at the time of importation; that therefore, they have not undertaken any activity of packaging from bulk pack to retail pack; that it has been held by the Tribunal in the case of Commissioner of Central Excise, New Delhi Vs.
Panchsheel Soap Factory -2002 (145) ELT 527 that activity of putting the sticker on the product in order to comply with the legal requirement of other laws in India, does not satisfy the criterion laid down in Note 6 to Chapter 34; that this decision was followed by the Tribunal in the case of Commissioner of Central Excise Delhi-I Vs. Avon Beauty Products (I)Pvt. Ltd -2002 (53) RLT 917 wherein it has been held that affixing a sticker indicating name of importer and MRP as per requirement under standards of Weight and Measurements act does not amount to labeling/re-labeling and does not amount to manufacture in terms of Note 4 to Chapter 33 of the Tariff. He also mentioned that the Appeal filed by the Revenue against decision in Avon Beauty Products case has been dismissed by the Supreme Court on 31.1.2003 in Civil Appeal No. D-25147/2002. Reliance has also been placed in the case of Commissioner of Central Excise, New Delhi Vs. Manisha International P.Ltd. -2003 (54) RLT 890 (CEGAT).
3. Countering the arguments Shri Jagdish Singh, learned Departmental Representative, submitted that the Commissioner in the impugned Order has given a specific finding that the Appellants have repacked the goods from bulk pack to retail pack; that it is mentioned in the impugned Order that description given in the Bills of Entry was "Somatosan 3 mg" and the quantity shown in Nos. 750 and the net weight as 9 kgs; that it is nowhere mentioned in the Bill of Entry that the goods were in smaller cartons and further packed in bigger cartons, that the invoice also did not in any way give any such details to show that the goods were imported in the retail pack; that mere mention of goods as "Somatosan 3 mg" does not in any way convey that the goods is packed in plastic tray and it is put up in bigger corrugated box for the purpose of transportation. He, therefore contended that Note 5 to Chapter 30 would therefore be applicable and the process of repacking from the bulk places to retail packs will amount to manufacture.
4. We have considered the submissions of both the sides. We observe from the reply to the show cause notice filed by the Appellants that they had specifically submitted that the Somatosan injections are imported in 3 mg ampules placed in a plastic tray which is packed in small carton and number of such small cartons in a big carton for the purpose of transportation. No material has been brought by the Revenue to counter the submissions made by the Appellants to show that the goods were imported in only bulk pack and the Appellants have put them into small packs. The Revenue, has merely mentioned the description in the Bill of entry in the invoice, which is not sufficient to indicate that the individual ampules were not placed in a small plastic tray, which is a packed in a small carton. The Revenue has thus not succeeded in establishing that the Appellants were engaged in repacking the goods from bulk packs into retail packs. In respect of indicating the MRP, on the imported products, it has been held by this Tribunal in a number of cases that pasting of sticker on imported product to indicate the name of the importer and MRP which is the requirement under the Standard of weights and Measures Act would not attract the Chapter Note. The Tribunal has further held that imply putting the sticker does not amount to labeling or re-labeling, reprocessing, the processes, which have been deemed to be process of manufacture by Note 5 to Chapter 30 of the Tariff. It has also been noted by the Tribunal in the case of Panchsheel Soap Factory (supra) that the Central Board of excise & customs vide Circular No. 102/4/95-CX.3 dated14.5.96 has clarified that when the imported finished medicine are sold after pasting sticker on the cartons of the imported item in view of the requirement of the Drugs and Cosmetics Act without altering any information originally contained in the package, Note 5 to Chapter 30 would not be attracted.
In view of this, we set aside the impugned Order and allow the Appeal.