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TMI Blog2018 (9) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... and tube test. On Carton / Box appellant was mentioning that "NOT FOR MEDICINAL USE FOR IN VITRO USE ONLY". The appellant were maintain batch register for the same, they have neither declared such product to the department and nor they have paid Central Excise duty on the said goods. Accordingly, the SCN was issued and the demand was confirmed, classifying the goods under chapter heading 3822.00. After aggrieved by the Order in Original, appellant filed appeal before Ld. Commissioner (Appeals) who by passing a detailed order upheld the Order in Original and rejected the appeal filed by the appellant therefore, the present appeal. 2. None appeared on behalf of the appellant, further written submission was filed by the appellant wherein, it was urged that in the appellant's own case this Tribunal passed the order, whereby the issue is settled in their favour and goods accordingly, correctly classifiable under chapter heading 3002.00, as the goods are meant for Diagnostics use. 3. Sh. K.J. Kinariwala Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submission made by the both the sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 Litres, the label affixed is also 'Pure Water'. It is his submission that words 'Pure Water', by any stretch of imagination cannot be considered as brand name. He would submit that, the very same was considered in the Kamani Food wherein, it is dearly held that Pure Water is classifiable under Chapter 22.01.90. 5. As regards the classification of 'WIDAL-SALMONELLA ANIGENS SET', it is his submission that the said issue is also now well-settled by the Hon'ble Supreme Court in the case of Span Diagnostics Limited - 2007 (211) E.L.T. 521. He takes us through the entire case law and submits that the Hon'ble Supreme Court has specifically, in paragraph 21, has clearly held that 'WIDAL-SALMONELLA ANIGENS SET' falls under Chapter Heading 30.02. He also takes us through the decisions of the Tribunal in the appellant's own case as reported - 2008 (222) E.L.T. 54 and submits that Tribunal has taken a view that term 'Diagnostic or Laboratory Agent' occurs only in Chapter 38.22 and not in Heading 30.02 and hence, Diagnostic or Laboratory Agents fall under Chapter Heading 30.02 as well. He would also take us through the HSN Notes of Chapter 30 for the relevant period and HSN Notes 38.22, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of "Brand Name" as given in Chapter note 3 of Chapter 22 of the CETA, schedule. In view of above, I find that the "Pure Water" in 5 litre retail pack is a product distinct from the De-mineralised Water in bulk procured by the appellants and the process of conversion of de-mineralised in bulk to the product "Pure Water" in 5 litre retail packs amounts to the manufacture of a new product, viz. "Pure Water" (branded) falling under sub-heading 2201.19 of the CETA schedule. Therefore, I hold that the order of the adjudicating authority classifying the product "Pure Water" under sub-heading 2201.19, attracting excise duty @ 16% adv. and attracting the provisions of Section 4A of Central Excise Act, 1944 by virtue of Notification 43/2000-C.E. (N.T.), dated 22-6-2000 as amended from time to time, is sustainable in law. The confirmation of demand of duty under the proviso to Section 11A of the Central Excise Act, 1944 by invoking the extended period is in order as the appellants have deliberately mis-declared the goods with intent to evade duty. The demand of interest under Section 11AB ibid is in order and hereby upheld. It can be seen from the above reproduced findings that the lower au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Once 'instant tea' falls within the definition of Section 3(n), a cess can be levied on it under Section 25 of the Act. In our view, the Commissioner (Appeals) was right in upholding the order of the Assistant Commissioner but the Tribunal went wrong in holding that 'instant tea' is different from 'tea' and it fell outside the scope of Section 3(n) of the Act referring to Prevention of Food Adulteration Rules, 1955 and the Tea Waste (Control) Order, 1959. When the Act defined 'tea' specifically, the Tribunal ought not to have strained itself by referring to other enactments to construe 'instant tea' as the product not included within the definition of 'tea' under the Act. 10. It can be seen from the above reproduced paragraph of the Apex Court's decision in Tata Tea Limited, wherein their Lordships have clearly held that term 'Instant Tea' is not a brand name of the product manufactured by the assessee therein, it is nothing but a name of the product itself. In our considered view, this ratio will clearly cover the issue before us, 'Pure Water', by any stretch of imagination cannot be considered a brand name. There is no evidence on record brought by the Revenue as to hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cinal use and is a composite blood chemistry reagent kit. Further, the activity undertaken by the appellants - of putting four different varieties of Salmonella Antigens procured in bulk packs into four separate ampoules of 4 ml each and putting the same in a box/carton for sale as a composite WIDAL-SALMONELLA ANIGENS SET of 4 or 2 Antigens - is nothing but labelling/relabeling of container and repacking from bulk pack to retail pack or adopting of any other treatment to render the product marketable to the consumers and thus amounts to manufacture in terms of clause (ii) of Section 20(f) of the Central Excise Act, 1944 read with Chapter Note 5 of Chapter 38 of the CETA schedule. The order of the adjudicating authority holding the activity as amounting to manufacture and classifying the product under sub-heading 3822.00 of the CETA schedule is therefore in order. The order of confirmation of demand by invoking the extended period on grounds of suppression of facts etc., with intent to evade duty is sustainable as also the order for recovery of interest thereon." 12. It can be seen from the above reproduced findings of the learned Commissioner (Appeals) that he has come to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 21. As stated above, Chapter Heading 30.02 refers to antisera and other blood fractions. According to the Explanatory Note in HSN (Seventh Edition), antisera is obtained from the blood of humans or animals which are immune against diseases. Antisera is used for diagnostic purposes, including in-vitro tests. There is nothing like crude antisera and refined antisera. In the present case, even according to the Department, PTK is an antisera, however, according to the Department, PTK is a refined antisera. As stated, antisera falls under Chapter Heading 30.02. In the circumstances, "antisera" is covered by Chapter Heading 30.02 and since it is covered by that Heading, Chapter Heading 38.22 will not apply. If one reads Chapter Heading 38.22, it becomes clear that there could be diagnostic or laboratory reagents which could fall under Chapter Heading 30.02 and also under Chapter Heading 38.22. However, if a diagnostic or laboratory reagent like antisera falls under Chapter Heading 30.02 then it stands excluded from Chapter Heading 38.22. 22. Before concluding we may record the statement made on behalf of M/s. J. Mitra& Co. Ltd. that they have closed down their business in produci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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