9911796707
TMI Blog2001 (4) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... the classification lists were approved, the ingredients of the products were withheld, therefore, the proviso to Section 11A was rightly invoked. (ii) Products have a predominant mixture of vitamin and chapter 23.02 covers only products which can be traced to animal or vegetable origin and not synthetic preparations. (iii) Classification made on the basis of active ingredients which are VITAMINS as per Rule 3 the last heading will have to be applied and the products would be classified under heading 29.36 of the Central Excise Tariff Act, 1985. (iv) The case of M/s. Glaxo India Ltd., & Tribunal decision thereon was being contested by the department and the findings on M/s. Ranbaxy's case will be applicable. (b) The following facts have been admitted as seen in para 3 of the order. (i) Technical Affidavits from experts and users have been placed on record. (ii) Classification Lists approved since 1992, but the same was contested by the department from 1994 and the department has lost the case before Commissioner (Appeals) but has gone further in appeal. (c) During the course of hearing the learned C.A. stressed on the bar of limitation to be operating in the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or material relied, that the explanations offered were incorrect misleading or suppressed. Relying on the case of Supreme Court in the case of ESEI Industry & Chemical - 1996 (82) E.L.T. 444, and Muzzaffarnagar Steel [1989 (44) E.L.T. 552 (T)] we would hold that there exist no ground to invoke the proviso to Section 11A(1) as regards the demands on Ostocalcium Vet (ii) The demand determined is for the period 6/92 to 7/94 vide notice, dated 20-5-1997; there is no period of demand with six months. The notice alleges - Para 3 - "whereas it also appears that the composition of the various ingredients present in these products has been withheld from the department deliberately, with the malafide intention of getting the products classified at Chapter sub-heading 2302 as AFS and evading Central Excise Duty." And the 'statement of facts' enclosed to the notice allege - STATEMENT OF FACTS M/s. Kemwell (P) Ltd., No. 11, Tumkur Road, Bangalore (hereinafter also referred to as the 'assessees') are manufacturers of excisable goods assessable to duty under Chapters 17, 19, 21, 23 and 30 of the Schedule to the Central Excise Tariff Act, 1985. They filed Classification List No. 1/94-95 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore appears that the said Vitablend WM Forte, being composed of only Vitamin A would merit classification under Chapter sub-heading 2936.00 of the Tariff Act as a Pro-vitamin and not as AFS under heading 2302. 3. Ostocalcium Vet : The sampling Advice sheet dated 1-8-1994 shows the following to be contained in 5000 ltrs. of Ostocalcium Vet :- Calcuim : 330 mg. Phosphorus : 171 mg. Vitamin D3 : 1942 IU Vitamin B12 : 22.33 mcg. 3. As can be seen, the quantity of calcium and phosphorus contained in the said Ostocalcium Vet is very minute, and the same contains Vitamin D3 predominantly, along with a small quantity of Vitamin B12. It, therefore, appears that Vitamin D3 and Vitamin B12 being predominant and active ingredients, render the said product an intermixture of vitamins, by virtue of which the same appears to be classifiable under Chapter sub-heading 29.36. 4. In the case of M/s. Ranbaxy Laboratories Ltd. v. C.C.E., New Delhi as reported in 1994 (72) E.L.T. 197 (T), the Hon'ble Tribunal has held per majority that the "Products are synthetic preparations containing mixtures of vitamins, as active ingredients, as per the composition declared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified under Rules 173Q(1)(a) and 173Q(1)(d) ibid. The duty payable on this account works out to Rs. 2,22,84,805/- for the period from 6/92 to 7/94. M/s. Kemwell (P) Ltd., appear to be liable to an equivalent penalty under Section 11AC of the Act and also under Rule 173Q of the Central Excise Rules, 1944." A careful perusal of the same does not reveal how there was a deliberate intention of getting the products classified as Animal feed supplements. The chart prepared in the appeal book extracted above, indicates that the Assistant Collector's Range Officer had sought details vide letter dated 8-3-1993, which were replied vide letter dated 9-3-1993, i.e. within 24 hours. The Range Staff, sought further information on 16-10-1993 which was replied along with samples on 29-10-1993, thereafter further details were sought by the department, vide letter dated 26-9-1994 i.e. almost after a year. From the same it is abundantly clear that the officers were definitely making the enquiries. Once these enquiries were on, they should therefore, not have approved the classification Lists for the year 1992-93 on 2-11-1992, the classification Lists of year 1993-94 on 23-2-1994 and 4-9-1994. Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
