Ozone Pharmaceuticals Limited Vs Commissioner of Central Excise & Service Tax (CESTAT Kolkata)
CESTAT Kolkata held that confirmation of demand of duty unjustified if in the totality of the facts and circumstances of the case, no actual loss has been caused to the revenue. Thus, duty demand set aside in absence of any loss of revenue.
Facts- M/s. Ozone Pharmaceuticals Limited as well as M/s Ozone Ayurvedics are engaged in manufacturing of medicines falling under sub heading 3003 10 of the 1st Schedule to the Central Excise Tariff Act, 1985.
The appellant contested that the intent with which the amendments of Notification No. 61/2002 were given retrospective effect, vide Finance Act, 2003, was met by the Appellants upto the date of its enactment. Even the provisions of Section 153(4) have been wrongly interpreted by the department in the present case to mean that the said provision mandates the recovery of refund by only confining the duty payment and credit accumulation to the period upto 22.12.2002. This is neither brought out from the express language of the provision nor from the intent thereof. The Appellants by utilizing the entire Cenvat credit upto the enactment of Finance Act, 2003 never got any refund under the Notification in excess, thus, there is no question of recovery by invoking the said provision.
Conclusion- Held that demand of duty cannot be confirmed against the assessee if in the totality of the facts and circumstances of the case, no actual loss has been caused to the revenue.
Held that the refund claim of the appellants for the subsequent period, could not be rejected on the ground that the appellant has taken excess refund for the period prior to 22.12.2002, therefore, no demand is sustainable against the appellant as demanded in view of the letter dated 03.06.2003 by the Deputy Commissioner and the refund for the period August, 2006 to October, 2006 were not required to be appropriated.
FULL TEXT OF THE CESTAT KOLKATA ORDER
As the issue in both the appeals is common, therefore, both are disposed off by a common order.
2. The facts of the cases in both the appeals are as under :
M/s. Ozone Pharmaceuticals Limited as well as M/s Ozone Ayurvedics are engaged in manufacturing of medicines falling under sub heading 3003 10 of the 1st Schedule to the Central Excise Tariff Act, 1985 and is registered with the department vide Registration No. AAACO0056HXM002 and AATPS8259CXM002 respectively.
