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TMI Blog1991 (9) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... g classification under TI 1B and full exemption under Notification No. 17/70. The said product was provisionally approved as claimed by the assessee. The Range Superintendent drew the samples of the said product and send the same to Chemical Examiner for test. The Deputy Chief Chemist, Bombay found that the product is a syrup of pre-digested protein fortified with vitamins and iron. The Deputy Chief Chemist felt that the product indicated to be a suppliment of food is to be used as a tonic and not food by itself. These facts were also noticed as per the details given on cartons and labels affixed on the bottles containing the said syrup. Therefore, he suggested to obtain the views of Drug Controller. The Range Superintendent made a reference to the Joint Commissioner of Food and Drug Administrator, Bombay to ascertain whether the product is a medicine or food. In a communication addressed to the respondents, the Joint Commissioner of Food and Drug Administrator informed that the product will not fall under the meaning of drug as defined under the Drug and Cosmetics Act, 1940, and advised them to approach the competent authority to obtain the licence. The Range Superintendent al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because it is not registered under the Drugs Control Act that by itself, would not be enough to consider it as being not a drug. They contended that the product is sold only on a prescription by a medical practitioner and the doses has to be taken as per the direction given by the medical practitioner. The product is also supplied to the patients on prescription issued by doctors. The same is taken to tone up the body with requisite proteins and vitamins. It is contended that the product is sold under a brand name and the bottles and the cartons bear Monogram of Li Take laboratories and thus it indicates a connection with the manufacturer and the product. The Revenue have also contended that the product cannot be taken as a food as the cost of the product vis-a-vis other items, is prohibitive. The product is also sold in containers having a definite colour scheme and manufacturer s monogram which is the practice followed for sale. It is contended that as the product is having a therapeutic value, it is to be classified as P and P medicine under TI 14E as there is a specific Tariff Item to cover it. It cannot be consigned to the residuary item 68 also. It is contended that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, yet the definition of drug in Section 3(b) of the Drugs and Cosmetics Act, 1940 inter alia shows that drug includes substances other than food intended to affect the structure or function of any human body. The High Court had on a further examination of the expression any drug or medicinal preparations as used in Explanation 1 to Item 14E defining patent or proprietary medicines indicates that the words Medicinal preparations are used in the same sense as drug . Therefore, the scope of patent or proprietary medicines in Item 14-E must be understood in accordance with the provisions of Drugs and Cosmetics Act. 8. Shri Sheth further argued that dietory products are food supplements and merely because it was prescribed by doctors, it did not indicate that they were medicine or drug and so also the stamping on the wrapper Physician sample not for sale could not in any way make the product a medicine. He relied on the Collector s Trade Notice DM No. 234/68 dated 14-10-68. He also relied on the Ministry s Letter No. 1/6/72-CX. III, dated 28-7-75 wherein it is stated that where a product is marketed as food then it has to be assessed under Item 1-B of CET. He has also placed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicine classifiable under TI 14-E of CET on account of its therapeutic value. The Revenue is relying on the report of the Deputy Chief Chemist who has opined that the product has got therapeutic value. They are also relying on the colour scheme of the wrapper and the fact that it is to be prescribed by a doctor for the purpose of dosage. Are these factors sufficient to reverse the lower authorities findings that the item is food supplement. It is well settled that the onus to prove classification is on the Revenue. It is also well settled that the Trade parlance and commercial understanding of a product is a pre-requisite for a classification of a item, in the absence of any definition in the Tariff Item. The Revenue in this case has not placed any evidence in support of the contention that the product in question is a P and P medicine and that it is marketed as a drug and not as a food supplement. On the other hand, the assessee has placed before the Revenue the evidence of the product not being considered as a drug by the Drug Authorities and also about the fact that it is considered as a food and regularised by the Municipal authorities by grant of licence. The Trade notice and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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