9911796707
TMI Blog1999 (8) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ansported refrigerated between temperatures 2 C - 8 C; the other is diluent. The vaccine before administration is reconstituted by combining the viral preparation with the diluent which is a liquid. It is this resultant product which is administered to poultry. The diluents are five in number; one diluent is common for three vaccines which is raised to reconstitute all these three. 2. The appellant claimed classification of the viral preparation and the diluent together as vaccines under heading 30.02 of the tariff. The department was of the view that the appellant had not intimated to it the manufacture and clearance of the diluents and issued notice proposing to recover the duty payable on them, by classifying them under heading 3823.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diluent. The appellant manufactures the diluent solely for the purpose of reconstituting the vaccine. 4. It is therefore not justifiable to classify one separately without regard to the other. It is further contended that, alternatively the application of Note (2) to Section VI of the tariff would require the two products to be classifiable together as one. Each of the ingredients of the note is satisfied. There is no dispute that the two are cleared in one set and cannot be used without the other and such uses do not have repacking. Invocation of the extended period contained in the proviso to Section 11A is questioned on the ground that the appellant was under the impression that the entire product was a vaccine. Such vaccines being ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate that the matter may be sent back if necessary, to the Commissioner for verification. 6. We first not propose to consider what the classification of the diluent would be, by applying Note (2) to Section VI of the tariff. It is true that the applicability of this note was not raised before the Commissioner. We do not propose to send the matter back to him for consideration. In our view, the data required to be considered for the applicability of this note are available before us, and it would be appropriate that one more round of litigation is avoided. We refer in this context the judgment of the Supreme Court in M.G. Sahni v. C.C.E. - 1994 (73) E.L.T. 3 which has held that where all the materials required for decision is available be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not recovering any amount for the diluent. Even in replacing we do not charge any extra amount to depots/customers because our main concern is that vaccine virus should go alive in the body . It is clear from this that, except for an occasional case of replacement supply, the vaccine and the diluent are cleared together. There can, in fact, be little doubt that such freezed dried vaccine has to be reconstituted by mixing with diluent before capable of being administered. The Extra Pharmacopoeia of Martindale says that vaccine may be significantly containing vaccine are mixed combined vaccine. It will have first number of vaccines which are required to be reconstituted - BCG vaccine (page 1613), Botulism anti toxins (page 1615) . The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application. 10. The goods are identifiable as being intended to be used together having regard to the manner in which they are put together. The leaflet for the vaccine, which we are told accompanied both the diluent and the viral preparation indicates the necessity for reconstitution by using the final preparation and the diluent together. Labels on the bottles of the diluent themselves indicate for what vaccine they are to be used. The three requirements of the Note 2 to Section VI are therefore, in our view, satisfied. One of the two items is classifiable under Note 2 to Section VI and the requirement in this regard is therefore satisfied. The product would be classifiable as a vaccine under heading 30.02. This being classifiable at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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