2010 (5) TMI 295 - AT - Central Excise

Demand - Limitation - The appellants are manufacturing the product Nivaran 90 Herbal Cough Syrup , which they have claimed to be an Ayurvedic medicine entitled for exemption from excise duty. Held that - the appellants have not been able to produce any evidence that in common parlance, the impugned goods are treated as Ayurvedic medicine by the public. The only certificate produced by them before the lower authority does not anywhere certify the impugned goods to be Ayurvedic. Impugned goods cannot be considered as Ayurvedic medicine. Penalty - Suppression - held that - extended period invoked. Where the charge of suppression has been proved, penalty of Rs. 30 lakhs justified.

Summary

Issues:
1. Classification of product "Nivaran 90 Herbal Cough Syrup" as Ayurvedic medicine for exemption from excise duty.
2. Interpretation of what constitutes Ayurvedic medicine based on authoritative texts and common parlance.
3. Consideration of ingredients not listed in Ayurvedic texts.
4. Determination of suppression of ingredients affecting the time-barred demand.
5. Application of cum-duty assessment and modvat/cenvat credit.
6. Imposition of penalty for suppression.

Analysis:

1. The case revolves around the classification of the product "Nivaran 90 Herbal Cough Syrup" as Ayurvedic medicine for exemption from excise duty. The departmental authorities argued that the product did not meet the criteria as per Ayurvedic texts.

2. The Tribunal referred to the Naturelle Health Products Pvt. Ltd. v. CCE case where it was established that the common parlance test and the mention of ingredients in authoritative books on Ayurvedic Medicines are crucial in determining if a medicine qualifies as Ayurvedic.

3. The judgment also cited the Amrutanjan Ltd. v. CCE case, emphasizing that the use of ingredients known to both Ayurvedic and western sciences does not render a product non-Ayurvedic. However, in this case, the appellants failed to provide evidence that the product was considered Ayurvedic in common parlance.

4. The Tribunal noted that the appellants did not disclose all ingredients, especially those not specified in Ayurvedic texts, leading to a charge of suppression. This non-disclosure affected the time-barred demand and was held against the appellants.

5. Regarding the demand for cum-duty assessment and modvat/cenvat credit, the Tribunal found the appellants' requests reasonable. They directed the authorities to re-calculate the duty amount based on cum-duty pricing and allowed credit on duty paid inputs, subject to verification.

6. In light of the suppression of ingredients and non-disclosure, the Tribunal upheld the penalty of Rs. 30 lakhs imposed on the appellants, considering it justified in the circumstances of the case.

7. Ultimately, the appeals were dismissed, except for the limited relief granted regarding cum-duty assessment and modvat/cenvat credit, as indicated in the judgment.