Jagsonpal Pharmaceuticals Ltd. Vs. Commr. of C. Ex. - Court Judgment

Excerpt:
1. this rectification of mistake application was filed by m'/s.jagasonpal pharmaceuticals pvt. ltd. on the ground that the tribunal in the final order no. a/2448/96-nb, dated 14-10-1996 1997 (92) e.l.t. 414 (tribunal) has not given any finding in respect of the arguments raised by the appellants on the applicability of note 5 to chapter 30 of the central excise tariff.2. ld. counsel appearing on behalf of the appellant submitted that the tribunal in final order no. a/2448/96-nb, dated 14-10-1996 1997 (92) e.l.t. 414 (tribunal) recorded the submissions made by the appellant in respect of applicability of note 5 to chapter 30 of the central excise tariff act, 1985. he also submitted that tribunal in the final order wrongly distinguished the earlier decision of the tribunal in the case of heal well pharmaceuticals pvt. ltd. v. cce reported in 1994 (72) e.l.t. 446. he submits that it is a settled position of law that the tribunal rendered its decision without giving any finding on the plea raised by the appellant is undoubtedly a ground of rectification. he also relied upon the misc. order no. e/105/97-d, dated 22-9-1997 and submitted that in this case the tribunal in the rectification of mistake application recalled the order.4. the present application was filed by the appellants on the ground that no finding was given by the tribunal in the final order in respect of applicability of note 5 to chapter 30 of the central excise [tariff] act, 1985. in relation to products of heading no. 30.03, conversion of powder into tablets or capsules, labelling or relabelling of containers intended for consumers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to 'manufacture'.6. the above mentioned note of chapter provides that in respect of product heading no. 30.03 manufacture includes conversion of powder into tablet or capsules, labelling or relabelling of containers intended for consumers and repacking from bulk pack to retail packs or adoption of any other treatment to render the product serviceable. this argument was noticed by the bench in para 2 of the final order.7. in the present case the dispute is in respect of the modvat credit on the disposable syringes and needle packed along with the injection manufactured by the appellants. the appellants are manufacturing the medicine i.e. medatec 25. the medicine was filled up in a ampules and thereafter these ampules with the syringe and the needle are packed in blister packing.8. the plea of the appellant is that this disposable syringe and needle are inputs used in or in relation to the manufacture of final product i.e. medatec 25 filled in ampules.9. the tribunal in the final order noticed the fact that in the declaration filed by the appellant they declared the disposable syringe and needles as packing material and in para 6 the tribunal considered the decision in the case of heal well pharmaceuticals pvt. ltd. v. cce reported in 1994 (77) e.l.t. 446.10. the applicants also relied upon the misc. order no. e/105/97-d, dated 22-2-1997. in this case the final order was recalled on the ground that additional grounds which were escaped the attention of the tribunal while deciding the case. in the present case a plea raised by the appellant was noticed by the bench in the final order has recorded in para 2 of the order.11. hon'ble supreme court in the case of t.s. balram v. volute (sic) brothers reported in air 1971 sc 2204 held that a mistake apparent on record must be obvious and patent mistake and not something which can be established by a long drawn process of recycling of points on which there may be two opinions.12. in view of the above discussion, we do not find any mistake apparent on record. consequently the application is rejected.

Judgment:
1. This rectification of mistake application was filed by M'/s.

Jagasonpal Pharmaceuticals Pvt. Ltd. on the ground that the Tribunal in the Final Order No. A/2448/96-NB, dated 14-10-1996 1997 (92) E.L.T. 414 (Tribunal) has not given any finding in respect of the arguments raised by the appellants on the applicability of Note 5 to Chapter 30 of the Central Excise Tariff.

2. Ld. Counsel appearing on behalf of the appellant submitted that the Tribunal in Final Order No. A/2448/96-NB, dated 14-10-1996 1997 (92) E.L.T. 414 (Tribunal) recorded the submissions made by the appellant in respect of applicability of Note 5 to Chapter 30 of the Central Excise Tariff Act, 1985. He also submitted that Tribunal in the final order wrongly distinguished the earlier decision of the Tribunal in the case of Heal Well Pharmaceuticals Pvt. Ltd. v. CCE reported in 1994 (72) E.L.T. 446. He submits that it is a settled position of law that the Tribunal rendered its decision without giving any finding on the plea raised by the appellant is undoubtedly a ground of rectification. He also relied upon the Misc. Order No. E/105/97-D, dated 22-9-1997 and submitted that in this case the Tribunal in the rectification of mistake application recalled the order.

4. The present application was filed by the appellants on the ground that no finding was given by the Tribunal in the final order in respect of applicability of Note 5 to Chapter 30 of the Central Excise [Tariff] Act, 1985.

In relation to products of heading No. 30.03, conversion of powder into tablets or capsules, labelling or relabelling of containers intended for consumers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to 'manufacture'.

6. The above mentioned note of Chapter provides that in respect of product Heading No. 30.03 manufacture includes conversion of powder into tablet or capsules, labelling or relabelling of containers intended for consumers and repacking from bulk pack to retail packs or adoption of any other treatment to render the product serviceable. This argument was noticed by the Bench in para 2 of the final order.

7. In the present case the dispute is in respect of the Modvat credit on the disposable syringes and needle packed along with the injection manufactured by the appellants. The appellants are manufacturing the medicine i.e. Medatec 25. The medicine was filled up in a ampules and thereafter these ampules with the syringe and the needle are packed in blister packing.

8. The plea of the appellant is that this disposable syringe and needle are inputs used in or in relation to the manufacture of final product i.e. Medatec 25 filled in ampules.

9. The Tribunal in the final order noticed the fact that in the declaration filed by the appellant they declared the disposable syringe and needles as packing material and in para 6 the Tribunal considered the decision in the case of Heal Well Pharmaceuticals Pvt. Ltd. v. CCE reported in 1994 (77) E.L.T. 446.

10. The applicants also relied upon the Misc. Order No. E/105/97-D, dated 22-2-1997. In this case the final order was recalled on the ground that additional grounds which were escaped the attention of the Tribunal while deciding the case. In the present case a plea raised by the appellant was noticed by the Bench in the final order has recorded in para 2 of the order.

11. Hon'ble Supreme Court in the case of T.S. Balram v. Volute (sic) Brothers reported in AIR 1971 SC 2204 held that a mistake apparent on record must be obvious and patent mistake and not something which can be established by a long drawn process of recycling of points on which there may be two opinions.

12. In view of the above discussion, we do not find any mistake apparent on record. Consequently the application is rejected.