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TMI Blog2001 (8) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act and issued show cause notice [SCN] to the company demanding duty on the above clearances at the rate applicable to CSH 3306.00 of the Tariff Schedule. The SCN also proposed to impose penalties on the company and some of its functionaries. The SCN was contested. The dispute was adjudicated by the jurisdictional Commissioner of Central Excise, who, by Order dated 20-11-1997, confirmed the demand of duty (Rs. 93,79,303.65) against the company and imposed penalties on the company and two of its functionaries (Rs. 5 lacs and Rs. 2 lacs each). Appeal Nos. E/547/98-C, E/552/98-C and E/553/98-C are against that order of the adjudicating authority. 2.2 A similar dispute had arisen between the company and the department in respect of clearances of DML effected by the former from its Hajipur unit during June, 1993 - March, 1996. The jurisdictional Commissioner confirmed the demand of duty (Rs. 75,69,466.63) against the company and imposed penalties on the company and four of its functionaries (Rs. 5 lacs and Rs. one lac each). The present appeal Nos. E/546/98-C and E/548 to 551/98-C are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and CSH 3003.31 for the remaining part of the period, having regard to the fact that total exemption from payment of duty of excise was available (under Exemption Notification) during 1994 to 1996 to medicaments (falling under CSH 3003.30) manufactured exclusively in accordance with the formulae described in the authoritative books specified in the First Schedule to the Drugs Cosmetics Act and sold under the names specified in such books, and the further fact that, for the subsequent period, such medicaments were chargeable to Nil rate of duty in terms of CSH 3003.31. (In 1996-97, medicaments of CSH 3003.30 were sub-divided into three categories and placed under CSH 3003.31, 3003.32 and 3003.39. The medicaments manufactured and sold as above fell under CSH 3003.31). 5. Ld. Counsel has submitted that DML was manufactured exclusively in accordance with the formula prescribed in Ayurved Sar Sangrah specified in the First Schedule to the Drugs Cosmetics Act and was sold under the name specified in the said book. It comprised several constituents viz. Geru Mitty (Red earth), Tamala patra, kali mirch, Babul, Pippali, Akarkara, Lavanga, Kapur, Peppermint etc. mixed/compounded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e [1996 (88) E.L.T. 355]. 7. Shri Kohli has, further, submitted that the classification issue in these appeals has been squarely covered in favour of the appellants by Order No. CI/4292/WZB/2000, dated 13-12-2000 [2001 (138) E.L.T. 218 (Tribunal)] passed by the West Regional Bench (WRB) of the Tribunal in the appellant s own case viz. Appeal No. E/2237/99-Bom. He has also cited Order No. A/2035-2036/CAL/2000, dated 14-12-2000 [2001 (133) E.L.T. 792 (Tribunal)] which was passed by the Tribunal East Regional Bench (ERB) in the Revenue s appeals Nos. E/R-95-96/2000. The ERB was following the WRB s decision. The WRB held that DML was rightly classifiable as Ayurvedic medicament under Heading 30.03. Counsel wants us to follow suit. 8. Ld. SDR Sh. M.D. Singh has vehemently opposed the Counsel s arguments. His argument is that, since tooth powder is specifically covered by Heading 33.06 of the Tariff, one need not labour to classify it elsewhere in the Tariff. The product in question is, admittedly, tooth powder. It is marketed under that name [Dant Manjan = Tooth Powder] and is known as such in common parlance. Ld. DR has further contended that DML cannot be considered to be a medici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an who used the Dant Manjan daily to clean his teeth considered it as a medicine and not a toilet requisite. This reasoning of the Tribunal based on common parlance (popular meaning) test for classifying DML as a toilet preparation and not an Ayurvedic medicine was approved by the Apex Court in its judgement dated 30-3-1995. 10.2 No doubt, the above decision of the court was on the question whether DML manufactured by the appellants fell within the meaning of Ayurvedic medicine during the old Tariff period. During that period, there was no definition of medicine or medicament in or under the Excise Act, though a specialised definition was available under that Act for patent or proprietary medicines . In contrast to this position, medicaments have been defined in Chapter 30 of the new Tariff, apart from the specialised definition of patent or proprietary medicaments provided in the same chapter. Ld. Counsel argued that, for the new Tariff period, any popular meaning of medicines/medicaments should be treated as having been superseded by the statutory definition of medicaments . Obviously, this proposition was advanced to obviate any application of the common parlance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is at once under Heading 30.03. For placing the product under CSH 3003.30/31 as on Ayurvedic medicament, one has got to make further enquiries in terms of the sub-heading. Classification being the Revenue s burden, we don t think that the Central Excise authorities can shirk their responsibility of putting to the test of Chapter Note (2), a product which is claimed to be an Ayurvedic medicament. 10.5 Above all, as rightly submitted by ld. DR, the product being specifically covered by Heading 33.06 and excluded from Chapter 30 (vide Note 1(d) of this Chapter), there appears to be, in our view, hardly any scope of enquiry into the question as to whether the goods would merit classification elsewhere in the Tariff, in view of Interpretative Rule 1. This is particularly so as, apparently, it has not been disputed by the appellants that their product is suitable for use as tooth powder and put up in a form clearly specialised to such use vide Note (2) of Chapter 33. 11. Having disagreed with our learned brothers of WRB on the classification of Dant Manjan Lal, we direct the Registry to place the papers before the Hon ble President for the purpose of constituting a Larger Bench to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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