9911796707
TMI Blog2013 (8) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... C test kits. The appellant were classifying these diagnostic kits under Heading 30.02 of the Central Excise Tariff which covered "Antisera and other blood fractions; vaccines, Toxins, Cultures of Micro-organisms (including ferments but excluding yeasts) and similar products" and were not paying any duty as the tariff rate of duty for the products of this sub-heading is nil. According to the department, however, these products are correctly classifiable under Heading 38.22 which covers "diagnostic or laboratory reagents on a backing, prepared diagnostic or laboratory reagents, whether or not on a backing, other than those of Chapter 30". 1.1 The HIV kits work on the principle based on antigen and anti body reaction. The antigen (Recombinan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 The department being of the view that the above test kits are not classifiable under 3202 but are classifiable under Heading 3832, issued two show cause notices dated 28-3-2003 and 5-2-2004 for classification of the above products under Heading 38.22 and demand of differential duty amounting to Rs. 77,57,189/- and Rs. 19,81,194/- alongwith interest and also for imposition of penalty on the appellant under Rule 25 of the Central Excise Rules. 1.5 These show cause notices were adjudicated by the Commissioner vide order-in-original dated 16-3-2005 by which the Commissioner - (a) held that the diagnostic kits, in question, are correctly classifiable under sub-heading 3822.00 of the Tariff and; (b) confirmed the total duty demand of Rs. 93, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97, the HIV infection detecting kit is classifiable under Heading 30.02, that the Apex Court in the case of Span Diagnostics Ltd. v. CCE, Surat reported in 2007 (211) E.L.T. 521 (S.C.) has held that the blood grouping reagents based on monoclonal antibodies are correctly classifiable under Heading 30.02, as the reagents are derived from cultures of micro-organism, and not under heading 30.05, that in this judgment, the Apex Court also held that even though the HSN mentions "Antisera, blood fractions and modified immunological products (MIP) including monoclonal antibodies" as one class, there is no contradiction between the Chapter Heading 30.02 of Central Excise Tariff and HSN Heading 30.02, that the judgment of the Apex Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispute about the facts that - "(a) the main ingredient of AIDS (HIV I & II) diagnostic kit is HIV antigen (recombinant antigens) obtained from cultures of micro-organism which is used alongwith colour conjugate (Protein A) also obtained from cultures of micro-organism, (b) the main ingredient of the kit for detection of Hepatitis B is a combination of monoclonal antibody obtained from cultures of micro organism and polyclonal antibodies which is nothing but Antisera/Blood fractions, which is conjugated to colloidal gold; and (c) the main ingredient of kit for detection of Hepatitis C is antigen (recombinant) obtained from culture of micro-organism alongwith the colour conjugate (Protein A) also obtained from cultures of micro organism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduct group "certified reference materials", in which is there, HSN Heading 38.22 but is not there in Central Excise Tariff heading 38.22, the Central Excise Tariff Heading 38.22 and HSN Heading 38.22 are identical. From a plain reading of Central Excise Tariff heading 38.22 it will be seen that it covers those diagnostic or laboratory reagents whether or not on a backing, which are not covered by 30.02. Since the goods, in question, are diagnostic reagents on a backing, for their classification under 38.22, their classification under Heading 30.02 has to be ruled out. 8. During the period of dispute, while Central Excise Tariff Heading 30.02 covered two product groups, namely - (i) Antisera and other blood fractions; and (ii) Vaccines, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue is not correct as in terms of HSN Explanatory Notes to Heading 30.02 - (a) the product group "Vaccines, toxins, cultures of micro-organism (excluding yeasts) and similar products" includes the diagnostic reagents of microbial origin, other than those provided for in Note 4(d) to HSN Chapter 30 (corresponding to Note 3(d) of Central Excise Tariff Chapter 30); (b) Diagnostic kits are classified in this Chapter if the essential character of the kit is given by any of the products of this heading and common reactions occurring in the use of such kits include agglutination, precipitation, neutralisation, binding of complement, haemagglutination. Enzyme Linked Immuno Sorbent Assay (ELISA) etc.; and (c) monoclonal antibodies which are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
