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TMI Blog2010 (2) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Y.N. Ravani, Standing Counsel, for the Respondent. [Judgment per : K.A. Puj, J. (Oral)] . - The appellant has filed this Tax Appeal under Section-35G of the Central Excise Act, 1944 proposing to formulate the following substantial questions of law for determination and consideration of this Court. (i) Whether or not the Hon ble Tribunal committed an error of law in not passing a reasoned order and in not considering the outline of arguments which deal with various decisions of the Hon ble Tribunal as well as the Circulars of the Board directly on issue? (ii) Whether or not the Hon ble Tribunal erred in law in deciding the classification of Calcium Gluconate without even considering Chapter Note 2 to Chapter 30 and without even considering whether the product in question falls under Chapter Note 2(i)(a) or Chapter Note 2(i)(b)? (iii) Whether the Hon ble Tribunal clearly committed an error of law in relying upon an earlier ex parte order passed in the case of products falling under Chapter Note 2(i)(b), when the present case clearly is a product falling under Chapter Note 2(i)(a)? (iv) Whether the Hon ble Tribunal clearly committed an error of law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture injections and tablets therefrom was not disputed even in the show cause notice dated 28-8-1987. The Commissioner of Central Excise passed an order-in-original on 28-9-1998 holding that this product is not medicament but organic chemical and it does not fall under Tariff Heading 3003.30 (medicament) but falls under Tariff Heading 2918.00 (organic chemicals). 6. Being aggrieved by the order of the Central Excise the appellant preferred an Appeal before the Tribunal and the Tribunal vide its order dated 5-1-2004 remanded the matter to the Commissioner with certain directions. On remand again the Commissioner passed his order on 24-1-2006 upholding the classification of the product as canvassed by the Revenue. Being further aggrieved by the said order the appellant preferred an Appeal to the Tribunal. It is the case of the appellant that detailed submissions were made to the Tribunal and detailed outline of argument was also filed before the Tribunal. Without considering this submission which go to the very root of the matter, the Tribunal passed an order after four months on 22-6-2009 [2009 (244) E.L.T. 157 (Tri.-Ahmd.)] and dismissed the Appeal filed by the appellant. It is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their therapeutic and prophylactic uses. He has further submitted that Central Excise Tariff provides that if the intent is to use the product for therapeutic and prophylactic uses and the manufacturer does mixing or compounding two constituents for these purposes, then such a product would classify as medicament. 8. Mr. Parikh further submitted that Part (b) of the definition refers to unmixed product. With regard to such unmixed product, it is required that unmixed product which are basically organic chemicals, must be put up in measured dosages or packed in such a way to be fit for medical use directly, before they can be classified as medicaments . Thus, the need for the product to be directly administrable to a patient is necessary only in the case of unmixed product and certainly not in the case of a product which consists of two constituents which are put together for therapeutic or prophylactic uses. He has, therefore, submitted that the Tribunal has failed to appreciate this clear language of the chapter note. The Tribunal has further failed to appreciate that even the show cause notice itself admits that the product has therapeutic and prophylactic uses. The only case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in holding that the product in question is not a medicament. For arriving at this conclusion the Tribunal relied on the decision in the case of Shanpur Industries v. Commissioner of Customs Excise, reported in 2000 (119) E.L.T. 416. The Tribunal has, however, not considered the fact that the said decision was not only an ex-parte but various other products were packed for classification together and it was presumed that the case fell under Chapter note 2(i)(b) and not under 2(i)(a). He has further submitted that a reference to the statement of the person concerned with Shanpur Industries is highly irrelevant in as much as his statement was taken in 1997, even prior to the Tribunal s own decision in that case. In any case, all these aspects which go to the very root of the matter and hence the sole reliance on the decision of Shanpur Industries (supra) is wholly unjustified. He has, therefore, submitted that the substantial questions of law do arise out of the order of the Tribunal and since the notice is issued by this Court calling upon the department to make its stand clear, appropriate order may be passed either accepting the Appeal in toto or at the most remanding the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e should not be had to be a scientific or technical meaning of terms and expressions but to their popular meaning as attached to it by persons dealing with that product. While applying from common parlance test also calcium gluconate is classifiable under CETH 2918.00. The Tribunal has also referred to the new Central Excise Tariff introduced with effect from 28-2-2005, calcium gluconate appears under sub-heading 2918.1610. 11. After referring to the arguments of both the sides the Tribunal ultimately came to the conclusion that the decision in the case of Shanpur Industries was rendered considering the products as calcium gluconate only. In that case also the decision was rendered considering that the product was covered by the very Chapter notes. Further, the Manager of the very same Shanpur Industries, has stated that they were classifying the product under CETH 2918.00 only. The Tribunal has also referred the other decisions and observed that those decisions are distinguishable on facts. Mr. Ravani has, therefore, submitted that there is no infirmity in the order passed by the Tribunal and the Appeal deserves to be dismissed. 12. We have considered the rival submissions mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) upheld the classification. Before the Tribunal there was no appearance on behalf of the appellant. The Tribunal merely refers to the fact that the assessee continues to maintain that Note 2(1)(a) would apply to their products. Without discussing anything else the tribunal in that case observed that the manner in which the products have been described, makes it difficult to believe that they are mixture of different constituents. In the manner the goods are described, the provision that would attract is sub-clause (b). For such products to become medicaments, they have to be put up in measured doses or in packings for retail sale. Since the products do not fit under Chapter Note 2 at all, the Tribunal upheld the impugned order passed by the Commissioner (Appeals). It is relevant to observe that there was no discussion worth its name in the decision of Shanpur Industries. Again this decision is rendered in respect of ten products. The product in question in the present Appeal i.e. Calcium Gluconate has not at all been separately considered. 13. In the above view of the matter, we are of the opinion that the sole reliance placed by the Tribunal in the decision of Shanpur Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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