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TMI Blog1998 (11) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... : (i) M/s. Shahnaz Ayurvedics................. Rs. 3,68,04,850/-(Duty) Okhla Indl. Area................................ Rs. 3,68,04,850/-(Penalty) (ii) M/s. Shahnaz Ayurvedics, ............... Rs. 4,80,84,599/-(Duty) Noida .......................... Rs. 4,80,84,599/-(Penalty) (iii) M/s. Shahnaz Ayurvedics............... Rs. 92,30,773/-(Duty) Noida .......................... Rs. 92,30,773/-(Penalty) (iv) M/s. Shaheeb Cosmetics ................. Rs. 25,00,000/-(Penalty) (v) M/s. Shahnaz Hussain.................... Rs. 50,00,000/-(Penalty) The learned Sr. Advocate submitted that M/s. Shahnaz Ayurvedics, manufacture patent proprietory Ayurvedic medicines since 1986; that they had applied and obtained a Drug licence f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the products to be Ayurvedic medicines. 3. He mentioned that show cause notices dated 28-2-1997, 1-4-1997, and 30-7-1997 were issued for demanding duty for extended period after the visit to their premises by the officers of the Directorate General of Anti Evasion. The learned Sr. Counsel contended that in view of various orders issued in the past, it cannot be held that the Department was not aware of the manufacturing activity or the true nature of their products nor it can be alleged that they had suppressed or concealed or mis-stated facts before the Department; that any demand against an approved classification list can be raised only after modifying the classification list on the basis of cogent reasons and not arbitrarily. Regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicine; that all the active ingredients have therapeutic and prophylactic values, that the excipients, which have been termed as chemicals by the Department, are inert and do not have any therapeutic or prophylactic values which would interfere with the working of the active ingredients; that the affidavits of doctors/Vaidyas and letters from users clearly demonstrate that even in common trade parlance and usage the impugned products are treated and perceived as Ayurvedic medicines. He also submitted that any change in the classification is permissible only prospectively and cannot be held retrospectively and relied upon C.C.E. v. Bhiwani Textile Mills, [1996 (88) E.L.T. 639 (S.C.)]. He also stated that M/s. Shaheeb Cosmetics are not relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas the provision was introduced with effect from 26-9-1996 only. Reliance was also placed on Maruti Udyog Ltd. v. C.C.E., [1998 (101) E.L.T. 675 (T)] = 1998 (25) RLT 246. Further once penalty has been imposed on the proprietorship or partnership concern, no penalty can be imposed upon the proprietors or partners as held in Puran Mal Bansal v. C.C.E., [1998 (100) E.L.T. 482 (T)]. 6. Countering the arguments, Shri Lakhinder Singh, learned Jt. CDR, submitted that it is not correct to say that no proceedings were pending before the Drug Controllers as show cause notice dated 11-4-1996 has been issued to the applicant company which is apparant even from the record of cross-examination of Shri G.C. Lal; that Shri Lal has nowhere mentioned tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence that had come to light during the course of investigation was not before the earlier Adjudicating Authorities; that M/s. Shahnaz Hussain herself in her Book Shahnaz Hussain s Beauty Book had described these products as herbal cosmetics; that in the advance licence application for fixation of input output norms under the DEEC Scheme the products had been described as beauty cream etc.; that the applicant company had deliberately mis-stated facts and suppressed the fact that the impugned products were cosmetics when furnishing declaration to the Central Excise authorities and there is no evidence to show that the kind of evidence gathered by Anti Evasion Officers was ever brought to the knowledge of the officers who passed the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in Cotspun case. We observe that the learned Senior Counsel mentioned that on the question of valuation, the duty involved is Rs. 25 lakhs approximately or Rs. 1 crore, if the view of the Department is found to be correct considering the product to be drugs or cosmetics. We, therefore, direct the Applicant Company to deposit Rs. 1 crore within 12 weeks from 16-11-1998. On complying with this direction there will be waiver of pre-deposit of remaining amount of duty and entire amount of penalty imposed on all applicants and the recovery of the same will be stayed during the pendency of the appeals. Failure to comply with this direction will result in dismissal of appeals automatically without any further notice. The matter to come u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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