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TMI Blog1987 (7) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants for breach of certain rules set out in the show cause notice and orders of the lower authorities are justified. 2. In response to notice of hearing, the appellants by their communication dated November 18, 1986 (received in the Tribunal on 1-12-1986) intimated that they are not in a position to appear for the hearing either in person or through an authorised representative. They requested that the case may be decided on merits in their absence and they have nothing to add to the representation made in their appeal. The letter further refers to a valuation issue raised against them by appropriation of an amount of Rs. 18,619.87p. from the Bank guarantee. They appear to have entered into correspondence with the Tribunal - whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled classification list No. 4/78, dated 19-6-1978 declaring this item among others as non-excisable. While the Assistant Collector or Central Excise approved the classification in respect of other items, about this item he made a remark that its classification would be dealt with separately. The Superintendent in charge of the appellants unit drew a sample of the product on 12-10-1978 and the same was sent to Deputy Chief Chemist, Central Excise for chemical analysis. The order of the Assistant Collector further shows that the Chemical Examiner vide his letter dated 10-12-1974 opined that the product could not fall under Tariff Item 14-FF for which the sample was sent for his opinion but expressed its possibility of falling under Tariff I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en disclosed to the Drug Control Administration in 1964 or otherwise. He, therefore, directed the departmental officers to bring the fact to the notice of the Food Drug Administration for further clarification when the above facts were brought to the notice of the Food Drug Administration, the Commissioner of Food and Drug Administration vide his letter No. A/TO/G-26/75, dated 17-11-75 informed the department that the spirocton gum cream would be a new drug within the meaning of Section 75(B) of the Drugs Cosmetics Act, 1940 and accordingly they had instructed the party to approach the Drug Controller of India, New Delhi, to obtain the permission for manufacture of the said product as a drug so as to enable them to issue the necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered as P P medicine falling under Item 14-E but so far the Department has not been able to classify the product in question. The appellants maintained that they had complied with. the directions and instructions of the Drugs Controller of India but the Dental Institutions did not cooperate. They could not, therefore, submit the necessary certificates. The products are not sold on doctor s prescription and the carton of the product does not say so. They denied the charge of mis-declaration. They maintained that they had been cooperating with the Department and furnishing information on the nature and composition of the product without concealing any fact. The appellants could not be penalised because the Department could not arriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture of the said drug as drug so as to enable them to issue the necessary licence under Drugs and Cosmetics Act, 1940. It appears that the appellants approached the Drug Controller of India for required permission but for some reason or the other, they did not succeed in obtaining the permission so far. Now it is well settled that burden to prove that a particular manufacture or product falls under any particular Tariff item for classification is on the Revenue. For coming to a finding on classification the officer empowered for the job can hold enquiry according to law and can also call upon the applicant or manufacturer to produce any documents in their possession relevant to the enquiry. Now in the instant case, the inference of sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut classification. In this connection, it is useful to refer to the form used for filing classification list which is form I available as Annexure I in Central Excise Law Guide 4th Edition by R.K. Jain published by Central Law Office, New Delhi-3. The memorandum of approval by proper officer appended to the form gives out 3 draft forms of approval. Serial No. 3 of the memorandum inter alia reads as under - Goods described against S. No. (s)........................... to................ of item No. 7 which have been claimed by the assessee as non-excisable are excisable. Tariff classification and rate of duty leviable in respect of these goods shall be as under, until further orders. Full instructions are also appended to this form. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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