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TMI Blog2008 (3) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for the Revenue, we find that the various ingredients, as per Master Formula Card of the product "Zest Powder" for a batch of 200 kgs. are as under : Sl. No. Ingredients Quantity in Kgs. 1. Soya Protein Hydrolysate20% I.H (Nitrogen content not less than 0.25 gm.) 193.80 2. Sodium Methyl Paraben I P. 0.260 3. Sodium Propyl Paraben I P. 0.130 4. Colloidal Silicon Dioxide I P. 0.100 5. American Ice Cream I.H. 2.800 6. Cardamom Dry Flavour I.H. 1.200 7. Vitamin Premix I.H 1.705 8. Carmoisine Supra 0.0005 9. Tartrazine Supra 0.0005 10. Brilliant Blue FCF 0.0005 11. Aspertame LP. 0.040 As per manufacturing process, the ingredients shown above are mixed in a drum mixer for 90 minutes and after mixing, the sample is sent to the Quality Control Department for the bulk assay of active ingredients and bulk density. Thereafter the product is packed in containers of different sizes. 2.2 The label affixed on the product describes the product as under "Powder of protein with Vitamins and Minerals" "Zest powder is a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them are pharmacopoeial constituents having prophylactic uses and the said label indicate that the product is manufactured, sold and consumed for prophylactic use. (c) The said goods are sold only through Registered Medical Halls of shops and are not available in normal provision stores as food products. (d) The product is considered as a medicament by the traders/dealers and Registered Medical Practitioners/shops and as such by applying common parlance test, they have to be considered as medicament and not as food products. (e) The certificate issued by the Drug Control Authorities, Vadodara is also to the effect that the 'Zest Powder' as prophylactic uses. (f) Inasmuch as the Drug Controller has opined that the Zest Powder is medicament, Excise Authorities are bound to accept the same, in terms of the Hon'ble Tribunal's decision in the case of Shree Biadyanath Ayurved Bhavan Ltd. v. CCE, [2001 E.L.T. 218 (Tri. Mum.)]. (g) The expression 'Fortified Food' and 'Versatile Nourishment' written on the label of the product cannot act against the appellant inasmuch as such an expression is used for the purposes of marketing strategy and commercial exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant's label on the product, which is cited as materials evidence in the show cause notice for classifying the product as foods, it is found that Zest Powder is undoubtedly described more like a food product than the medicine. The product is described as Chocolate with Cocoa flavour. American Ice cream flavour containing first class protein with best digestibility and highest biological value but not containing excess of sugar, cholesterol or sodium. As per label, the product is suitable for all age groups, including calorie conscious persons and pregnant women. It is further stated that "Zest Powder", dissolves into milk/water/any other drink, makes a delicious drink with high nutritive value, high biological value with high quantity of protein and essential nutrients. It is described as versatile nourishment. This is also described as Health food. The picture of the product on the label showing a CUP containing the preparation of the product with bold phrases like Chocolate with Cocoa flavour for versatile nourishment clearly gives the image of a food beverage like Bournvita or Coffee and other various product available in market now-a-days. Except one small line "f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d & Drug Authority, Gandhinagar, was obtained on 23-1-2001 only but as per the classification list dated 1-4-1997 given by the assessee itself along with defence reply, the product 'Zest Powder' was manufactured since 1995. The said classification list is produced by the assessee to prove that the Department was having knowledge about the product and its classification under Chapter 30 and there was no suppression of facts on their part. This fact of manufacturing the product from 1995 or may be earlier also contradicts the arguments of the assessee that the product is manufactured under Drug Control only. Moreover, on examination of the label, it is found that they have only mentioned 'manufacturing license No. G/888' but nowhere it is mentioned that is a drug license issued by Drug Control Authority. Apparently the intention of the assessee is not to project its product to the people as medicaments but to sell like versatile food only. Moreover by mere fact that the product is manufactured under Drug license, the product cannot be classified as medicaments as per Central Excise Tariff Act. The classification of the products for Central Excise purpose is to be deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he label, in the same manner in which a cup of milk containing Bhournvita or Horlicks is required to be taken in the morning break-fast. A pack of 200 gms. of Zest Powder boldly declares the same to be chocolate with cocoa. When viewed from this angle, admittedly the Zest Powder in question is meant for everyday use and treated in the common parlance as equivalent to any other healthy like Bhournvita, Horlicks etc. in the milk. There is no specific ailment mentioned in the label of the product so as to indicate that the same is helpful in curing that ailment. 7. The appellant's contention that the products stand manufactured by them under a drug licence stands very effectively dealt by Commissioner (Appeals). It is well-settled that merely because a drug licence has been issued to the appellant, does not ipso facto lead to the inevitable conclusion that the product is a medicament. In the case of M/s. Sunny Industries (P) Ltd. v. CCE, 1989 (39) E.L.T. 468 (Tri.)], it was observed that mere grant of drug licence by the Drug Controller does not make a product a drug for the Central Excise purposes. 8. As also rightly observed by the appellate authority, a drug licence may be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed for better tissue building in post-operative conditions. In fact this goes on to show that the product is a general health product which may assist in improving the general health conditions and as such prescribed by the doctors to the effect in the post-operational weak health. There is nothing in the certificate of any of the doctors to indicate that the said product is meant for prevention or treatment of a particular disease. All the certificates reflect upon and indicate is only one fact that the product is nothing but a general health improver. 12. We also find from the HSN Notes that heading 30.03 excludes from its coverage food supplements containing vitamins or minerals salts which are put up for the purposes of maintaining health or well-being but have no indication as to use for the prevention or treatment of any disease or ailment. It further goes on to say that these products which are usually in liquid form but may also be put up in powder or tablet form are generally classifiable in heading 21.06 or Chapter 22. Ld. Advocate has also referred to Indian Drug Review Publication November-December, 2004 to support his contention that the product is meant for use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e product is a medicaments, as contended by the assessee. Like in the case of medicine, the distribution of samples of supplementary food also is meant for enhancing its market. Moreover, no evidence has been adduced by the appellants at any time as to how much and to which doctors the samples of the product were distributed as samples of medicine. The assessee has produced only the labels of 'Zest Powder' marked as 'Physician Sample Not To Be Sold'. On such labels they have mentioned the dosage as well as the warning 'To be sold by retail on the prescription of a registered medical practitioner only'. However, both these things are missing from the labels meant for selling the product in retail. Moreover, the phrases like 'Improved' and 'a versatile nourishment' is added to the labels marked for the medical practitioners. The labels for the physician and market are thus contradictory and misleading. Moreover, no evidence of providing sample to the Medical Practitioners is given. By producing labels only, the fact of distribution of sample of the product to the Medical Practitioner is not established. Clearance of Physician Samples of a produ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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