2004 (97) ECC 74 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

West Regional Bench -- Mumbai

Ms. Jyoti Balasundaram, Member (J) and Shri Moheb Ali M., Member (T)

German Remedies Ltd.

Versus

Commissioner of Central Excise, Mumbai-IV

Stay No. E/S-575, 576/2004 in Appeals No. E/771, 772/2004

[Arising out of Order-in-Appeal No. PD/236 to 237/M.IV/2003 dated 30.10.2003 passed by the Commissioner of Central Excise(A), Mumbai]

Order No. S/694 & 695/WZB/2004/C-I dt. 19.5.2004, Certified on 4.6.2004

Waiver & Stay (C. Excise)

Pre-deposit & Recovery -- The demands arise as a result of holding that process of pasting stickers on 3 products viz. Ultravist, Magnevist and Actylyse imported by the applicants herein amounts to manufacture by virtue of Note 5 to Chapter 30 of the CETA. The same issue was the subject matter in the earlier decision of the Tribunal in favour of assessees. There is also a recent order of the Tribunal in the case of CCE, Mumbai v. L'Oreal India Ltd. (Final Order No. A/217/WZB/2004.C.I. dated 7.1.04), on the issue. In the light of these decisions, a strong prima facie case for waiver has been made out and therefore, the requirement of pre-deposit of duty and penalty in each case is waived and recovery thereof stayed.

Application allowed.

PRESENT :

Shri Nambirajan, Adv. for the appellant.

Shri Ajay Saxena, SDR for the respondent.

Cases Cited :

1. Borough Wellcome (I) Ltd. v. CCE, 2003 (57) RLT 697...................................... [Para 3]

2. CCE v. Avon Beauty Products (I) Ltd., 2002 (53) RLT 917................................. [Para 3]

3. CCE, Mumbai v. L'Oreal India Ltd. (Final Order No. A/217/WZB/2004.C.I. dated 7.1.04) [Para 3]

4. German Remedies Ltd. v. CCE, 2003 (89) ECC 314 (Tri)................................... [Para 3]

Per : Ms. Jyoti Balasundaram

The applications for waiver of pre-deposit of duty and penalty arise out of the common impugned order passed by the Commissioner of Central Excise (Appeals). The duty demand covered by Appeal No. E/771/04 in Rs. 90,38,273 and the penalty is Rs. 50,00,000; the duty demand in the other Appeal viz. E/772/04 is Rs. 1,84,61,518 and the penalty is Rs. 92 lakhs.

2. The demands arise as a result of holding that process of pasting stickers on 3 products viz. Ultravist, Magnevist and Actylyse imported by the applicants herein amounts to manufacture by virtue of Note 5 to Chapter 30 of the Central Excise Tariff Act which stipulates that

"in relation to products of Heading No. 30.03, ......... labelling or relabelling of containers intended to consumers and repacking from bulk packs to retail packs .........shall amount to manufacture".

3. We have heard both sides. We find that the same issue was the subject matter in the earlier decision of the Tribunal in favour of assessees viz. those in the case of

(a) German Remedies Ltd. v. CCE, 2003 (89) ECC 314 (Tri),

(b) Borough Wellcome (I) Ltd. v. CCE, 2003 (57) RLT 697, and

(c) CCE v. Avon Beauty Products (I) Ltd., 2002 (53) RLT 917 which was upheld by the Apex Court in Civil Appeal No. D25147/2002 dated 13.3.2003.

There is also a recent order of the Tribunal in the case of CCE, Mumbai v. L'Oreal India Ltd. (Final Order No. A/217/WZB/2004.C.I. dated 7.1.04), on the issue. In the light of these decisions, we hold that a strong prima facie case for waiver has been made out and therefore, we waive the requirement of pre-deposit of duty and penalty in each case and stay recovery thereof pending the appeals.

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