2009 (11) TMI 418 - AT - Central Excise

Classification- The issue involved in this case pertains to classification of Vaccine with Diluents. The relevant show-cause notices proposed to classify the product under Heading 38.23 of the Central Excise Tariff Schedule. The adjudicating authority classified it under Heading 23.02. The Department found that the adjudicating authority had traveled beyond the scope of the show-cause notices and hence the orders of that authority were reviewed. Held that- in the light of the decision of Ventri Biologicals v. CCE Pune assessee appeal allowed.

Summary

Issues involved: Classification of Vaccine with Diluents under the Central Excise Tariff Schedule.

Analysis:
1. The issue in this case revolves around the classification of Vaccine with Diluents. The show-cause notices proposed to classify the product under Heading 38.23, while the adjudicating authority classified it under Heading 23.02. The Department contended that the adjudicating authority exceeded the show-cause notices' scope, leading to a review of the orders. The Commissioner's Order of Review referred to a previous case involving a similar product, where the CESTAT classified it under Heading 30.02, a classification upheld by the Supreme Court.

2. The case of Ventri Biologicals involved a similar product classified under Heading 30.02, a classification affirmed by the Supreme Court. However, the ld. Commissioner (Appeals) in the present case classified the product under sub-heading 38.23. The appellant argued for classification under sub-heading 30.02 based on the Tribunal's decision in the Ventri Biologicals case and the Commissioner's Order-of-Review supporting this classification.

3. The Tribunal, after examining the records and hearing both sides, found that the appeal could be disposed of at that stage. The Tribunal allowed the appeal, supporting the assessee's claim for classification under sub-heading 30.02, in line with the previous Tribunal decision and the Commissioner's Order-of-Review. The decision was pronounced in court, concluding the matter in favor of the appellant.