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TMI Blog2019 (5) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case the appellant have not contested the report by the CRCL. There is a system of retest in the CRCL on being aggrieved by the test report which has not been followed by the appellant. On other hand, the appellant argues that the test report is not conclusive criteria for classification of the goods under the Central Excise Tariff heading. This appears to be not correct proposition. Moreover, the appellant themselves has applied for Drug Licence and which was granted to them on 4.12.2007 to manufacture these products. However, this grant of drug licence is for the subsequent period and hence not having any bearings on the current proceedings. Impugned order upheld - appeal dismissed - decided against appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... lty and interest under the provisions of Section 11A(4) of Central Excise Act, 1944 (hereinafter referred to as Excise Act), interest under Section 11AA. The penalty was also demanded under Section 11AC read with Rule 25 of Central Excise Rules 2002. The Show Cause Notice culminated into the impugned order, by which entire demand, including interest was confirmed along with imposition of penalty. Being aggrieved, the appellant filed this appeal before us. 4. Learned Advocate on behalf of the appellant submits that the products manufactured by them are rightly classifiable under Chapter Heading 3004 and 2106 of Central Excise Act, 1985 which is reproduced as under : Tariff Item Description of goods Unit Rate of duty (1) (2) (3) (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handigarh - 2003 (152) ELT 3 (SC) and Puma Ayurvedic Herbal (P) Ltd. Vs. Commissioner of Central Excise, Nagpur - 2006 (196) ELT 3 (SC) to that effect. 4.1 It is also submitted that the various decisions which was submitted before the learned adjudicating authority had not been dealt with which is as under : Sr. No. Finding of Commissioner Relevant para no. of impugned OIO Submission of Appellant 1. Relied on the case of DR. REDDY's LABORATOREIS LIMITED Verses STATE OF KERALA ST. Rev. No. 59 of 2006 as HC has observed that dietary supplement is generally for goods health Para 6.7 There is no discussion on determination of classification based on common parlance test. The appellant has not submitted the prescription of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of nutritional supplement is marketing practice followed by the appellant. The marketing and advertisement of product is not criteria for classification. (c)The product is used during recovery stage of any treatment. In addition to this, none of the medicine package contains the usage of medicine to prevent from being sold without prescriptions by chemists. The detailed legal submission has been made on para 5 below. 5. Product is nutritional supplement as appellant have been manufactured it under FSSAI license Para 6.12 and 6.16 License is not relevant to determine the classification. Kindly refer to para 7 for submission on this finding. 6. Relied on the test report of CRCL Para 6.15 The Chief Examiner has not st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Drug Controlling and Licensing Authority. It is submitted that the manufacture of product under Drug License is not a pre-requisite for classification of product under Chapter 30. Reliance was placed in the Hon'ble Tribunal in the case of B.P.L. Pharmaceuticals Ltd. Vs. Collector of Central Excise, Vadodara - 1994 (69) ELT 798 (Tribunal), had held that goods are manufactured under Drug License is not relevant to the classification of product as medicament. In view of above, he submits that the impugned order is not sustainable and liable to be set aside on this ground. 5. Learned Authorised Representative, on behalf of the Revenue, supports the impugned order on the ground mentioned therein. It is also submitted the sample was drawn and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the body to remain healthy. It is other than medicament. 2. CL-160 (DGCEI)/15.09.16 [Described as DSN capsules] The sample in the form of light yellow colour powder filled in capsules kept in blister strip packing it answers for Vitamin B1, Vitamin B2, Vitamin B6, Vitamin B12, Vitamin C, Zinc and Folic acid. It is a preparation composed vitamins and minerals needed by the body to remain healthy. It is other than medicament. Sealed remnant sample returned". This report has not been contested by the appellant as per record. The appellant has relied upon the various decisions with the chemical criteria is not applicable for the classification of product as drug or nutritional supplement. The appellant has given various prescripti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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