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TMI Blog2010 (12) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... handeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Ms. Renu Gupta, Advocate, for the Appellant. Shri Sunil Kumar, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Heard the learned Advocate for the appellants and DR for the respondent. By the present application, the appellants are praying for stay of the order passed by the Commissioner (Appeals) on 16-2-2006 read with the order passed by the Joint Commissioner, Kanpur on 20-12-2001. The Joint Commissioner by his order had confirmed demand of duty of Rs. 1,23,409/- with interest thereon and equal amount of penalty against them. The Commissioner (Appeals) has confirmed the said order. 2. The appellants are engaged in the manufacture of Acid Slurry, Spent Acid, Detergent Powder, Detergent Cake and Hair Oil. Pursuant to the information received from the Asstt. Commissioner, Bhopal about storage of 6,489/- bottles of Vitamin E enriched DOT Sheetal Ayurvedic Tel packed in cartons as well as otherwise, investigation was carried out with reference to the manufacture of the products by the appellants and in conclusion thereof show cause notice dated 21-6-2001 came to be issued to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 3-12-1999 and it was never objected to by the respondent and, therefore, there was no suppression of any facts by the appellants. 5. Ld. DR, on the other hand, placing reliance in the decision in the matter of Commissioner of Central Excise, Surat v. Zandu Pharmaceutical Works Ltd. reported in 2006 (204) E.L.T. 18 (S.C.), Zandu Pharmaceutical Works Ltd. v. CCE, Surat-II reported in 2004 (170) E.L.T. 421 (Tribunal-Delhi) and of the Apex Court in the mater of Commissioner of Central Excise, Nagpur v. Shree Baidyanath Ayurved Bhawan Ltd. reported in 2009 (237) E.L.T. 225 (S.C.) submitted that undisputed records clearly reveal that there was suppression of relevant facts and this was clearly admitted by the partner of the firm. 6. Ld. Advocate for the appellants also submitted that the appellants have already paid a sum of Rs. 53,500/- in total on 11-7-1998 and 3-11-1998, which was sought to be disputed by the DR while submitting that there was nothing on record to show that the appellants had deposited beyond a sum of Rs. 47,500/- besides that even in relation to the said sum of Rs. 47,500/-, there was nothing on record to show that the same related to the duty payable on Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 33.05 and it was held that the case was squarely covered by the decision of the Apex Court in the matter of Commissioner of Central Excise, Allahabad v. Himtaj Ayurvedic Udyog Kendra reported in 2003 (154) E.L.T. 323 (S.C.) and Commissioner of Central Excise v. Pandit D.P. Sharma reported in 2003 (154) E.L.T. 324 (S.C.) and, therefore, the Himtaj Tel was classifiable under T.I. 30.03. For this reason for which the decision in the case of Himtaj Ayurvedic Udyog Kendra reported in 2003 (154) E.L.T. 323 is not applicable to the facts of the case for the same reason. This decision is also of no help to the appellants in the case in hand. 12. In Zandu Pharmaceuticals, the Tribunal had observed that merely because the fact that some ingredients mentioned in the Authoritative text books on Ayurveda have been used in the manufacture of a product, it would not make the product a medicament . The said decision was confirmed by the Apex Court in an appeal against the same. 13. It is pertinent to note that though we are at the stage of deciding stay application, it is to be noted that the impugned order disclose clear finding to the effect that the show cause notice issued in the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity between the products mentioned in Shahnaz Ayurvedics case (supra) and the products of the IRPL, we do not agree. It is obvious that the products in the present case are comparable, if not identical with the products in Shahnaz Ayurvedics case (supra). We, therefore, have no reason to take a different view that was taken by the Allahabad High Court and against which the Special Leave Petition was dismissed by this Court. We also do not agree that there was any mis-statement of facts or suppression of material facts. It was contended that since the appellants sold their products to boutiques, beauty parlours, hotels and traders, they should be held as cosmetics . We have already taken stock of this argument and rejected the same. In that view we affirm the findings of the Tribunal regarding the limitation. In our opinion the Tribunal has considered all the facts brought before it and has come to the final findings in the following words : This would also go to show that a dispute prevailed in the matter of classification of such products. In the above circumstances, the appellants cannot be held to be guilty of suppression or mis-statement and hence the charge of suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X
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