9911796707
TMI Blog2003 (1) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... e classification of the following products : (i) Bhringraj Tail (ii) Trifla Brahmitail (iii) Neem Herbal Sat (iv) Sat Reetha (v) Meghdoot Herbal Sat (vi) Meghdoot Herbal Powder 2.2 He mentioned that Appellants manufacture these products on the strength of the Ayurvedic drug licence under the Drugs and Cosmetics Act 1940; that the ingredients based on which the products are manufactured are duly mentioned in the Authoritative Ayurvedic Text Book i.e. Bhava Prakash, mentioned in the First Schedule to Drug Cosmetics Act, 1940; that the Commissioner has not classified the impugned products under Heading 30.03 on the ground that the products have not been manufactured in accordance with the formula of preparation prescribed in the Authoritative Books on Ayurveda. The learned Advocate mentioned that Bhringraj Tail is manufactured by the Appellants as per Authoritative Books whereas the other products are manufactured as per their own formula but all the ingredients are mentioned in the Authoritative Text Books on Ayurveda. 3.1 The learned Counsel submitted that Chapter 30 of the Tariff covers Pharmaceutical Products . Heading No. 30.03 covers Medicaments ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Ayurvedic and Biochemics was withdrawn and a duty of 10% was being prescribed. This means that earlier such exemption was there for this category of Ayurvedic medicine also. When examined along with the earlier notifications of the year 1983 etc., it will be clear that such exemption was granted against sub-heading 3003.30 which should be taken as a heading including both categories of Ayurvedic medicines. Unbranded products continued to enjoy the benefit of the exemption. In the present case, the product of the appellant having ingredients exclusively mentioned in the authoritative books, but manufactured in accordance with the formulation of the manufacturer and sold in the brand name Himtaj Oil is Ayurvedic medicament even though not a classical one. 34 In the light of the above discussion, we come to the conclusion that the appellant s product is an Ayurvedic medicament. 3.2 The learned Advocate also mentioned that the Larger Bench has observed in Para 29 of the decision that once the decision of the Tribunal in the case of Amrutanjan Ltd. v. CCE - 1991 (32) ECR 538 was reversed by the Supreme Court in Amrutanjan Ltd. v. CCE - 1995 (77) E.L.T. 500 (S.C.), the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. He further argued that the invocation of extended period of limitation is not tenable, that they had filed a declaration before the Assistant Collector for financial year 1994-95 along with a list of goods manufactured by them indicating whether the goods are manufactured in accordance with the formula given in the authoritative Ayurvedic Text books or otherwise; that it was open to the Department to investigate the matter whether the products are entitled to complete exemption under Notification No. 75/94-CE; that there was no suppression or misstatement on their part with an intent to evade payment of duty; that moreover when the issue involved is one of classification and when there were conflicting views on the coverage of Heading 33.03 and the issue got resolved only by the Larger Bench of the Tribunal, suppression of facts with an intent to evade payment of duty cannot be alleged; that this is more so when they are a society engaged in rural development works. He relied upon the decision in Dena Jee Sansthan v. CCE, Meerut, Final Order No. 267-269/2000-C, dated 30-3-2000 [2000 (125) E.L.T. 1182 (T)] and in Kshetria Shree Gandhi Ashram v. CCE, Meerut, Final Order No. 812 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en held that in interpreting statutes like the Excise Act, the primary object of which is to raise revenue and for which purpose various products are differently classified, resort should not be made to scientific and technical meaning of the terms and expressions used but to their meaning, that is to say, the meaning attached to them by those using the product ; that the Supreme Court has held that Dant Manjan Lal is not classifiable as an ayurvedic medicament but under Heading 33.06 of the Tariff; that the Supreme Court has also observed in the said judgment that a medicine is used for a limited time and not every day unless it is so prescribed to deal with a specific disease like diabetes; that applying the ratio of the decision of the Supreme Court, the impugned products are not classifiable as ayurvedic medicaments. He also relied upon the decision of the Larger Bench in the case of Baidyanath Ayurved Bhavan v. CCE, Patna [2002 (140) E.L.T. 459 (T-LB) = 2002 (48) RLT 897 (CEGAT-LB)] wherein the Appellants claimed that their product was manufactured according to the formula described in the authoritative book included in the First Schedule to the Drugs and Cosmetics Act but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medicaments under sub-heading 3003.30 of the Central Excise Tariff. The Revenue has disputed the claim of the Appellants by contending that products in question are not medicaments but are products falling under Heading No. 30.05 of the Tariff. As per Note 2 to Chapter 30 of the Tariff which deals with Pharmaceutical Products , medicament means goods (other than foods or beverage such as dietetic, diabetic or fortified goods, tonic beverages) not falling within Heading No. 30.02 or 30.04 which are either - (a) Products comprising two or more constituents which have been mixed or compounded together for therapeutic or prophylactic uses; or (b) Unmixed products suitable for such uses put up in measured doses or in packings for retail sale or for use in hospitals. 6.4 It is thus clear from the definition of medicament given in Note 2 to chapter 30 that the product should have therapeutic or prophylactic uses. Merely because of the fact that some ingredients mentioned in the Authoritative text books on Ayurveda have been used will not make the product a medicament. This view find support from the decision of the Larger Bench of the Tribunal in the case of Baidyanath Ayurved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir packing a lady with black flowing hairs, Meghdoot Herbal Sat and Herbal Powder also carry similar depictions. These manifestations which are typical of cosmetics, obviously, are indicative of manufacture s intentions to market his product in that way among the customers. The marketing of any medicine or drug in this way is very uncommon and unheard of. Thus the products in question are classifiable under Heading 33.05 as preparations for use on the hair and not Ayurvedic Medicaments. 7. We find that the show cause notice has been issued on 31-3-1999 for demanding Central Excise duty for the period from 1-4-1994 to 31-10-98 by invoking the proviso to Section 11A(1) of the Central Excise Act. Thus maximum period is beyond the normal period of six months specified in Section 11A(1) of the Act. We find substantial force in the submission of the learned Advocate that the extended period of limitation is not invocable as the Appellants had filed a declaration in April, 1994 in which they had mentioned that they were manufacturing Ayurvedic Medicines and a list of the products was also enclosed. All the impugned products were mentioned in the said list. It can, therefore, be not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
