9911796707
TMI Blog2010 (6) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... of heading 2936, other than preparation of vitamin, preparation of minerals or Haematinic and erythropoietin preparations, chargeable to duty under sub-heading 30045090 of the Central Excise Tariff. It is on this basis that three show cause notices were issued to the appellant for recovery of short paid duty - show cause notice dated 25th June 2007 for recovery of short paid duty amounting to Rs. 29,67,251/- for the period from October 2003 to December 2005; show cause notice dated 11th September 2007 for recovery of short paid duty amounting to Rs. 38,86,584/- for the period from January 2006 to December 2006 and show cause notice dated 25th November 2008 for recovery of short paid duty amounting to Rs. 22,88,145/- for the period from January 2007 to June 2007. Each of the three show cause notices, in addition to duty, also sought recovery of interest on duty at the applicable rate as per the provisions of Section 11AB and also imposition of penalty on the appellant under Rule 25 of the Central Excise Rules, 2002. The show cause notices dated 22nd June 2007 and 11th September 2007 were issued by invoking longer limitation period under proviso to Section 11A(1) of Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate, that at that time the appellant had sought classification of this product under sub-heading 1508.90 attracting Central Excise Duty @ 8% adv., while the department vide letter dated 8th December 2004, informed the Appellant that the product should be classifiable under sub-heading 1508.10 of the tariff, where the rate of Excise Duty is 16% adv., that the appellant vide letter dated 13th December 2004 to the Department had submitted a detailed technical write up duely signed by Vice President (Technical), alongwith other literature, justifying the classification under sub-heading 1508.90, but no clarification was given by the department and there was no further query from the department, that subsequently the appellant on 19th April 2005 filed a refund application for the period from 1st March 2005, as according to the appellant while w.e.f. 1-3-05, the product was fully exempt from duty, but still the duty had been paid @ 8% adv., that in response to the refund application, the department had issued a show cause notice dated 9th December 2005, to which the appellant had submitted a reply on 2nd February 2006 and the Assistant Commissioner had fixed the personal hearing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have carefully considered the submissions from both the sides and perused the records. 3.1 The point of dispute in this case is as to whether the product called SIOOXY, which is being sold by the appellant as dietary supplement, containing omega-3 fatty acids, vitamins and minerals, is classifiable under sub-heading 15042090 of the tariff, where the rate of duty is nil or is classifiable as medicament under sub-heading 30045090, which is the residuary sub-heading of the heading 3004.50 pertaining to - other medicaments containing vitamins or other products of heading 2936 and where the rate of duty is 16% adv. We find that while the show cause notice dated 25th January 2008 for the period from January 2007 to June 2007 has been issued within the normal limitation period, so far as the show cause notice dated 22nd June 2007 for period from October 2003 to December 2005 and show cause notice dated 11th September 2007 for the period from January 2006 to December 2006 are concerned, while the show cause notice dated 22nd June 2007 would be totally time barred and the show cause notice dated 11th September 2007 would be time barred for the major portion of the period unless the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rich in omega-3 fatty acids, to which vitamins (vitamin C, vitamin E, Folic Acid, Vitamin A B6) and minerals have been added, the department wants to classify this product as - other medicaments containing vitamins or other products of heading 2936 - other than Haematinics and erythropoietin preparations, preparation of minerals or preparation of vitamins under sub-heading 3045090 on the grounds that - (a) Since its main constituent is fatty acid, by virtue of chapter note 1(e) to chapter 15, classification in chapter 15 is ruled out, and (b) Since it contains a mixture of vitamins and minerals, it has to be treated as a medicament covered by the residuary sub-heading 30045090 of heading 3004.50. 3.3 From the Appellant s technical write up, it appears that the goods, in question are soft gelatine capsules containing fish oil rich in omega-3 fatty acids with added vitamins and minerals and each capsule contain a fixed quantity of omega-3 acids (in form of glycerides), Vitamin E, Vitamin C, Vitamin B6, Vitamin A, Folic Acid and minerals - Manganese sulphate copper (in form of copper sulphate), Chromium (in form of Chromium picolinate), and Selenium (in form of Selenium dio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
