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TMI Blog2015 (4) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... confectionery under heading 1704. Heading 1704 of the central excise tariff is based on the HSN heading 17.04. Therefore, the scope of heading 17.04 of the central excise tariff would be same as the scope of the HSN heading 17.04. Heading 17.04 of the central excise tariff and heading 17.04 of the HSN cover sugar confectionery (including white chocolate, not containing cocoa) - Each table of Actifresh consists of 1495 mg of sucrose and 990.30 mg of liquid glucose and active ingredient is 4.8 mg of pudina ark and 3.90mg of nilgiri oil which is nothing but eucalyptus oil. In view of the HSN explanatory notes mentioned above, actifresh would be classifiable as sugar confectionery under heading 1704, as the ingredients are mainly flavoring agents not having any therapeutic value. For the same reason, plethico mint tablet which, in addition to the sugar/glucose base contains 0.15 mg of pudina ark would be classifiable as sugar confectionery unde heading 1704 as the pudina ark is only a mouth freshener or flavoring agent. As regards, plethico byte , each tablet of which grm, in addition to sucrose and liquid glucose base contains 2.5 mg of mulethi, the same would be classifiable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is from April 2004 to March 2007 and April 2007 to October 2008. Each tablet of the product Actifresh contains 0.378% of the active ingredient Pudina ark and Nilgiri oil and the remaining contents is sucrose and liquid Glucose. In case of plethico byte , each tablet contains 0.10% of the active ingredient mulethi and the remaining contents are sucrose and liquid glucose and the very small quantity of citric acid orange flavor and sunset yellow colour. In case of product travisil , each unit of 3 grm contains 0.23 mg of ayurvedic extracts and the remaining contents are mainly sugar (sucrose glucose) with very small quantity of chocolate brown colour, menthol lemon flavor and ginger oil. In case of plethico mint , each unit contains 0.15 MG of Pudina ark and the remaining content is of sugar and glucose. The Department was of the view that in view of the Tribunal s judgment in case of Warner Hindustan Ltd. vs Collector reported in 1989 (42) ELT 33 (Tri) wherein it was held that Hall s icemint tablets are not ayurvedic medicine simply because they contain the small quantity of Pudina and ginger oil and produce an aromatic and cooling effect in the mouth and throat, and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under heading 1704 of the tariff, and also the tribunal s judgment in the case of Kushal Confectionery and Pharma Ltd. vs CCE Chandigarh reported in 2000 (116) ELT 271 (Tri.) wherein the tribunal held that Honey Herb , Churyum drops and Tazza are preparations of sugar classifiable under sub-heading 1704.90 of the tariff and are not P P medicines classifiable under sub-heading 3003.30 of the tariff. He emphasized that just on account of presence of a very small quantity of active ingredient like puidna ark, nilgiri oil, mulethi or ayurvedic extracts, the products, in question, do not become ayurvedic medicines. that there is no dose prescribed for the products, in question, and that these products are neither prescribed by any Vaidya/ Doctor nor a products indicate any doses for any limited time and hence the same do not merit classification as ayurvedic medicine. He also pleaded that though the apex court in its judgment in the case of Warner Hindustan Ltd. vs Collector of Central Excise reported in 1999 (113) ELT-24(SC) has set aside the tribunal s order reported in 1989 (42) ELT 33, the apex court has not overruled the Tribunal s decision on the merits of the case but on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cines falling under chapter 30, but are sugar confectionery falling under heading 1704 of the central excise tariff. According to the respondent this judgment had been set aside by the apex court vide judgment dated 03.08.1999 reported in 1999 (113) ELT 24 SC. However, on going through the apex court judgment, we find that the Tribunal s judgment in the case of Warner Hindustan Ltd. vs CCE (supra) classifying ice mint tablets as sugar confectionery under heading 1704 had not been set aside on merit but had been set aside on the ground that on the Department s appeal against the Tribunal s order, the Tribunal for the first time classified the ice mint tablets as sugar confectionery under heading 1704 while neither side had adduced arguments for classification of the ice tablets as sugar confectionery under heading 1704. 7. Heading 1704 of the central excise tariff is based on the HSN heading 17.04. Therefore, the scope of heading 17.04 of the central excise tariff would be same as the scope of the HSN heading 17.04. Heading 17.04 of the central excise tariff and heading 17.04 of the HSN cover sugar confectionery (including white chocolate, not containing cocoa) . In terms of expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese products do not merit classification under chapter 30. However, in this regard, we find that the apex court in the case of CCE Calcutta vs Sharma Medical works reported in 2003 154 ELT 328 SC has held that merely because the percentage of active ingredients in a product is less it does not mean that the product is not medicament, as generally, the percentage or doses of the medicament will be such as can be absorbed by the human body and the medicament would necessarily be covered by fillers/vehicles in order to make the product useable. In this judgment, the apex court held that the main criteria for determining classification is normally the use it is put to by the customers who use it and for classification of a product as a medicament it is not necessary that the same should be sold against the Doctors prescription. Applying the above criteria, we are of the view that the product plethico byte containing mulethi and travisile lozenges , which are marketed by the appellant as medicines for sore throat/ cough would be correctly classifiable as ayurvedic medicine under heading 3004 of the Central Excise Tariff. Accordingly, we uphold the impugned order with regard to classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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