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TMI Blog2000 (5) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... i A R Bora and Shri A K Dokha, he imposed a penalty of Rs. 15,00,000/-each. By the impugned order, he imposed a penalty of Rs. 1 crore on the appellant Pfizer Ltd. under Rule 209A of the said Rules. He also imposed penalties of Rs. 15,00,000/- on the appellant's officials namely Shri P R Lydon, Shri F.K.R. Mehta and Shri D G Shah, of Rs. 10,00,000/- each on Shri A K Nehru and Shri S P Arora and of Rs. 5,00,000/- on Shri Anjaneyan and Shri S K Masani of the officials of the appellants namely Pfizer Ltd. 2. Facts of the case are that the appellant in Appeal No. 3092/99 manufactured on job work basis for another appellant M/s. Pfizer Ltd. products named as Coxistac, T M Egg Bifuran Formula, Neftin and Stafac. These products were classified from time to time as Animal Feed supplements falling under Sub-Heading No. 2302.00 of the Central Excise Tariff Act, 1995 attracting Nil rate duty. The show-cause Notice dated 4-8-1997 was issued alleging inter alia that these products merited classification as P or P Medicaments under sub-heading 3003.10 attracting duty @ 15% ad valorem. It was also alleged that the assessee had intentionally mis-classified the products with an intent to evad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to demonstrate as to how the products were known and understood in the market. He refers to pages 986 to 1076 Vol. V of Appeal Paper Book. Detailed technical literature and extracts from various national and international books were filed (Pages 1077 to 1154 - Vol. V of Appeal Paper Book) to demonstrate the manner in which such products were understood in poultry world. 5. He also drew our attention to the 5 Member Judgment in Tetragon Chemie 1999 (30) RLT 366 to say that the said judgment supports his case fully. He also drew our attention to the actual words used in HSN Notes that in respect of Heading 2309 which is equivalent to 2302 of CETA, he states as follows : Sr. No. Item Nature Purpose Examples Absence Leads to 1. Energy Nutr-ients High calorie Substances High Cabohydrates To produce Energy Necessary for Life Cereals Sugar Starch Fats Cellulose Tallow Strew Low energy Lethargy, non-attainment of breeders' Aims 2. Body Buil-ding Nutrie-nts Protein rich nutrients or Minerals Formation of animal tissues, building-up bones production of milk and eggs provide calcium, phosphorous, iron, sodium, iodine etc. Oil cake Dairy by products Brewing dregs Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed absorbers Vitamins Pro-Vitamins Amino-acids Antibiotics Cocci diostat Trace elements Emulsifiers Appetisers Favourings 3. Preservatives Stabilisers Anti Oxidents 3. & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carrier as shown in the label as well as on the product literature and/or combination of Antibiotic and carrier they would be classified under Heading 2302 and not under Chapter 30. Since these are bought and sold as animal feed and are regarded as animal feed pre-mix as brought out by various affidavits filed by the appellant which remained uncontroverted, the products would merit classification under sub-heading 2302. He invited our attention to para 116 of the judgment in the case of Tetragon wherein the Supreme Court judgment in the case of Tetragon wherein the Supreme Court judgment in Eskaef case 1990 (49) E.L.T. 649 referred to. He further argued that the question before the Hon'ble Supreme Court in Eskayef case was for classification of the product under T1-14E v. T1-68. There was no Chapter Notes then existing unlike as in the case of CETA as explained by him earlier. Therefore, there could be no question of applying the said judgment. He also relied upon the judgment of the Bombay High Court in the case of Glindia Limited - 1988 (36) E.L.T. 479, or Gujarat High Court in the case of Glaxo India Limited - 1979 (43) STC 386 and Pfizer Limited - 1991 (82) STC 374 and Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle chemical is mixed with a carrier and such preparation is meant for animal feeding, it will cover under Chapter 23. However, if two products are combined together for therapeutic or prophylactic use and are presented in such strength and they may come under Chapter 30 provided they are not food or feed supplements because Chapter Note 1 to Chapter 30 reads as under:- "The chapter does not cover: (a) Foods or beverages (such as, dietetic, diabetic or fortified foods, food supplements." We therefore agree that the contention raised by Shri Lodha. 12. As far as the argument of Shri Ramteke of Eskayef, para 116 of the larger bench decision in Tetragon Chemie Pvt. Ltd. v. CCE - 1999 (30) RLT 366 at page 418, the Tribunal held as follows: "Here we find that Neftin 50 and Neftin 200 contain Furazolidone which is administered for prevention and treatment of ailments viz. Coccidiosis and histomoniasis in poultry. Merely because Neftin 50 and Neftin 200 can also be used for improving egg production and increase in growth rate of broilers would not in any way detract from the fact that the said products are medicines for use in the treatment and prevention of ailments in poultry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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