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TMI Blog2010 (8) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent against the order passed by the Adjudicating Authority and set aside the demand confirmed by the Adjudicating Authority. 2. Under order dated 12th of January 2004, the Assistant Commissioner, Jaipur had confirmed the demand of Rs. 1,28,304/- alongwith interest thereon and had imposed penalty of Rs. 12,000/- against the respondent. 3. The respondents are engaged in manufacture of medicaments falling under Chapter 30 of the schedule to the Central Excise Tariff Act, 1985. During the period from September 2002 to December 2002, the respondents cleared 5,000 Tin of Erythromycin Thiocyanate Powder (Erythromycin - 2%) while treating the same as Animal Feed Supplement to be used by the Poultry Farms and classifiable under Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity did not take into consideration, the necessary test reports of the product as well as the literature in relation to the product in question. According to DR, taking into consideration the- ingredients of which the product consist of, the same is clearly classifiable as antibiotic and, therefore, under tariff sub-heading 2941.50. 5. On the other hand, the learned advocate for the respondent drawing our attention to the show cause notice dated 24th September 2003 submitted that the notice was issued merely on the ground that the respondent had been manufacturing Erythromycin Powder without payment of duty and on no other ground and, therefore, the grounds which are sought to be canvassed are de hors the show cause notice and the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied to said M/s. Ranbaxy Laboratories Ltd., the contention of the respondent that the product was poultry feed was not tenable and as per the test-report it was Erythromycin which is an antibiotic medicine for animal and, therefore, classifiable under sub-heading 2941.50. 8. The Commissioner (Appeals) in the impugned order has held that though the label on the product speak about 2% Erythromycin and the test report is shown as positive, the same does not disclose the percentage of Erythromycin found in the product. The product is sold in market in packed containers having the caption "poultry feed supplement" and "veterinary - not for human use - for animal use only". The product being sold in the market as animal feed supplemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y purchased Erythromycin in bulk from market and diluted the same to the extent of 2% Erythromycin and that it was only a formulation of Erythromycin and not a chemical, but it was animal feed supplement and, therefore, classifiable under chapter sub-heading 23.02 of the Central Excise Tariff Act. The said fact was never disputed by the department either before the Adjudicating Authority or before the Commissioner (Appeals) or even in the appeal filed before us. Obviously, therefore, the allegations in the show cause notice that the respondent were manufacturing Erythromycin Powder proved to be totally incorrect. Viewed from this angle, we find the observation by the Commissioner (Appeals) that the authority below travelled beyond the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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