9911796707
TMI Blog2000 (5) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 evade payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow 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, sod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove if a portion is made comprising coccidiostat and a carrier or an antibiotic and a carrier or a vitamin and a carrier, it would be classified under Heading 2309. The products in question are Coccidistat + Carrier and Antibiotics + Carrier) and therefore they have to be regarded as pre-mix and would merit classification under Heading 2302 of CETA. He further emphasis that as far as Chapters 29 and 30 and Rule 23 are concerned, he submitted that Chapter 29 covers within its ambit only "a separate chemically defined compound". Thus, an antibiotic or a coccidiostat or a vitamin in its pure chemical form will be covered under Chapter 29. Note 1(a) to Chapter 29 of CETA clearly mandates that Chapter 29 can house only such products which are separate chemically defined compounds. If such a single chemical of Chapter 29 is mixed with a carrier such as soya meal, soya flour, salt or chalk and the preparation is meant for animal feeding, it would be classified under Chapter 23 at Heading 2302. However, if two products are combined together for therapeutic or prophylactic use and are presented in such strength, that they are used as medicaments and are so presented and used they would be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Espi Industries 1996 (82) E.L.T. 44 (S.C.) He also further stated since the action of the appellant was not contumacious and extended period is not invokable, imposition of penalty is not called for under Section 11AC and confiscation of Plant and Machinery etc. is not justified and he invited our attention to the pages 45 to 47 Vol. I of Appeal Paper Book. He also stated that Section 11AC is not applicable as it cannot have retrospective effect. Maruti Udyog 1998 (101) E.L.T. 675 Alternatively he has argued that Supreme Court judgment in Ujagar Prints was not followed nor the judgment of the Tribunal in Shri Chakra Tyres - 1999 (32) RLT page 1 and ITC - 1999 (33) RLT 235 and he refers to page 44 of the Appeal Paper Book. 9. As against the learned D.R. would invite our attention to the order passed by the Lower Authority and adopt the reasoning mentioned therein. He specifically invited our attention to the various paragraphs of the Circular at Paras 63, 64, 65, 66 and 76 of the impugned order. 10. We have considered rival submissions. 11. It has been elaborately argued by Shri Lodha that how the product in question cannot be trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 15-2-1984 as animal feed supplement. We note from the above ruling of the Apex Court that during that period there was no tariff item as comparable to heading 23.02 of CETA 1985 but there was a residuary Tariff item 68 which covered all goods not elsewhere specified. Secondly, we find that in that case the dispute was between Tariff Item 14E Tariff Item 68 for the classification; that there was evidence to prove that Neftin 50 and Neftin 200 contained furazolidone which figured in British Pharmacopea and also prescribed as medicine in U.K. In the instant case, Revenue has not placed any evidence on record to prove that the preparations for decision before us were not used in animal feeding. It was also argued by the Counsels for the Assessees that CETA 1985 is now based on HSN and that in the Compendium of Rulings on HSN, it has been clearly clarified that Animal feed preparations shall be classifiable under Heading 23,09 of HSN. In the instant case as in that case, appellants filed affidavits from Veterinary Doctors, poultry farm owners, traders, etc. (pages 986 to 1076 - Vol. V of appeal paper book). This was in reply to the Show Cause Notice filed by the appellants bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
