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TMI Blog2006 (8) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... graha , which is an authoritative book specified in the First Schedule to the Drugs and Cosmetics Act, 1940. In all their factories situated at other places, goods are being classified by their jurisdictional Central Excise authorities as falling under sub-heading 3003.31. It is their contention that even at their factory at Howrah, the goods were being manufactured in accordance with the formulae described in Ayurved Sar Sangraha for which purposes they are maintaining Batch Card, containing details of quantity of Chyawanprash (Special) to be manufactured and name of all the ingredients as well as their respective quantities required for manufacture of the Batch concerned. These ingredients and their respective quantities are exactly as per page 544 of Ayurved Sar Sangraha . These Batch Cards are signed by the Vaid/Chemist at their factory. The goods in question were being cleared by them at nil rate of duty for the last number of years without payment of duty and no objection was ever raised by the Central Excise Department or by the Audit parties. 3. Explaining further Shri Bagaria, Sr. Advocate appearing for the appellants submits that :- The appellant maintained Led ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and composition of different products including the said product Chyawanprash (Special). During one such visit in May, 1996, the Superintendent of Central Excise required the Appellant to inform him in writing about the ingredients of the said product as well as the relevant reference book. Accordingly, in a letter dated 10-5-1996 duly received by the Superintendent on 14-5-1996, the appellant mentioned the ingredients of its said product and also mentioned the name of the reference book and its page number that is, page No. 544 of Ayurved Sar Sangraha. The Audit Teams from Central Excise Revenue Audit also used to carry out their audits at the factory. During such audits, the Audit Teams examined inter alia all production records, input consumption records, invoices, etc. 4. On the other hand, the Commissioner has held that the appellants were not manufacturing Chyawanprash (Special) according to formulae prescribed at page 544 of authoritative book Ayurved Sar Sangraha on the ground that the approval granted by the Director Drug Control, West Bengal, vide its list dated 15-7-88 was subsequently cancelled under the signature dated 21-5-88. He has also relied upon that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulae prescribed in Ayurved Sar Sangraha , which is a authoritative book specified in the First Schedule to the Drugs and Cosmetics Act, 1940. It is their contention that not only in their Howrah Factory i.e. the appellants herein, but in all other factories they are manufacturing Chyawanprash (Special) in accordance with the said specified formulae and the same is being classified as falling under sub-heading 3003.31, without any objection by Central Excise authorities. The Commissioner, for holding that the appellants was not manufacturing Chyawanprash (Special) , in accordance with the said formulae, has referred to the fact that the approval dated 15-7-88 by the Director of Drug Control, approving the manufacture of Chyawanprash (Special) as per page 544 of Ayurved Sar Sangraha was penned through or cancelled by the said authorities under his signature dated 21-5-88. This stands explained by the appellants that the Drug Authorities while approving the list, also mentioned active ingredients, appearing at page 544 of Ayurved Sar Sangraha , along with its quantities. Inasmuch as the specified ingredients are mentioned in Hindi in the said books along with old units of mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, since you have approved the formulae as per, Ayurved Sar Sangrah which is mentioned in the drug approval formulation as a reference book, we are continuing our production as per the formulation written in the said authoritative book. We are therefore, once again enclosing herewith a photocopy of page No. 544 of Ayurved Sar Sangrah for your doing the needful. As is clear from the reading of the above letter, the mistake in the approved list was as regards the quantities of various ingredients, which were mentioned against the said products. The appellants had pointed out that some of the ingredients are missing and the quantities are erroneously mentioned. Accordingly, they made a request to the said authority to take the corrective measures. In the said letter, the appellants had informed the Drug Control that - We are continuing our production as per the formulation written in the authoritative book . The said correction was entered by the Drug Authorities under their signature dated 21-5-88. This seems to be the objection of the Commissioner. However, the appellants has explained that signature with date 21-5-88 were probably put so as to relate back the amendment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention that the appellants was manufacturing the Drug appearing against Sl. No. 4 instead of the product appearing against Sl. Nos. 3, 5, 8 of above list. 9. Reference has also been made by the adjudicating authority to test report No. EXP/1507, dated 5-5-2001 recovered from the appellant s Head Office showing a different formulae. The appellant submits that the said report was not in connection with the Chyawanprash (Special) manufactured by them exclusively as per the formulae specified in Ayurved Sar Sangraha but related to a product developed by them for export purposes. The expression EXP attached to the said report signifying the same to be the test report of an export samples. They have drawn our attention to enquiry dated 14-2-2001 received from a foreign buyer of Italy requesting the appellants to make a trial sample of Chyawanprash with more sweeter and other suitable ingredients, so that it becomes more palatable and more efficacious. The test report of the trial sample must be authenticated and send to them for their approval. It was also indicated in the said letter of foreign buyer that if possible some ingredients, which help in reducing constipation and obe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dic Formulary of India published by the Government of India were filed before the Commissioner and the entire position was clarified to him. The said submissions of the appellant have been rejected by the Commissioner by holding that these do not appear to be convincing . It is submitted that the said purported finding is nothing else but a mere surmise and conjecture. There was absolutely no reason or basis or material to reject the said submissions by holding that it does not appear to be convincing . The Commissioner was not a chemical expert or technical expert. The appellant had produced evidence in support of its submissions as stated above and there was not even an iota of material to reject the aforesaid submissions. Further and in any event the said purported findings regarding use of gold have nothing to do with classification of Chyawanprash (Special) which was always manufactured exclusively in accordance with the formulae in Ayurved Sar Sangraha. 13. The appellants have also strongly contended that Commissioner has arbitrarily ignored the statements of various persons clarifying that Chyawanprash (Special) is being manufactured as per the authoritative books ..... X X X X Extracts X X X X X X X X Extracts X X X X
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