9911796707
TMI Blog2002 (1) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was followed by the East Regional Bench in E/A Nos. E/R-95-96/2000 (Final Order Nos. A/2035-2036/CAL/2000, dated 14-12-2000 [2001 (133) E.L.T. 792 (T)] whereby it was held to be classifiable under sub-heading 30.03 of the Central Excise Tariff. 2. The issue involved in the present case is in respect of classification of 'Dant Manjan Lal' for the period from June, 91 to May, 97 and the lower authorities held that the product, in question, is classifiable under Chapter Heading 33.06 of the Central Excise Tariff after relying upon the decision of the Hon'ble Supreme Court in appellants' own case i.e. M/s. Baidyanath Ayurved Bhavan reported in [1996 (83) E.L.T. 492]. 3. Ld. Counsel, appearing on behalf of the appellants, submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is to be adopted. For this, the ld. Counsel relied upon the decision of the Hon'ble Supreme Court in the case of C.C.E. v. Fenoplast (P) Ltd. reported in [1994 (72) E.L.T. 513] and in the case of Bakelite Hylam Ltd. v. C.C.E. reported in [1998 (101) E.L.T. 561]. 5. The second argument is that with the introduction of new tariff, the product, in question, is specifically covered under Chapter 30. The tariff entry 3003 covers medicaments including those used in Ayurvedic, Unani, Siddha and Homoeo or Bio-chemic systems and this entry was amended in the year 1996 and the sub-heading 3003.31 covers medicaments manufactured exclusively in accordance with the formulae described in authoritative book specified under the first schedule to the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1995 (77) E.L.T. 485 (S.C.)] and the decision of the Hon'ble Delhi High Court in the case of Manisha Pharma Plasto Pvt. Ltd. v. Union of India reported in [1999 (112) E.L.T. 22 (Del.)]. 7. Ld. DR, appearing on behalf of the revenue, submitted that 'Dant Manjan Lal' is a tooth powder and is specifically covered under Heading 3306 of the Central Excise tariff. As the product is marketed as tooth power and is known as such in the common parlance, it cannot be considered to be a medicine. His submission is that there is nothing on record to show that 'Dant Manjan Lal', requires no medical prescription and, in fact, it is used as tooth power. He relied upon Chapter Note 1 to Chapter 30 to say that preparations of Chapter 33, even if they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court held that 'Dant Manjan Lal', is not an ayurvedic medicine. With the introduction of the new Central Excise Tariff, 1985, the classification of the product, in question, is to be decided in view of the tariff entries. 9. For deciding the classification, the relevant entries of the tariff are reproduced below : "Chapter 30 - Pharmaceutical Products - Notes : 1. This Chapter does not cover (a) ----- (b) ----- (c) ----- (d) Preparation of Chapter 33 even if they have therapeutic or prophylactic properties. 2. For the purpose of Heading 30.03 : "(i) 'Medicaments' means goods (other than foods or beverages such as dietetic, diabetic or fortified foods, tonic beverages) not falling within Heading No. 30.02 or 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or therapeutic or prophylactic uses. The appellants had produced only two undated certificates issued by one Dr. M.R. Unyal, Herbal Specialist to show that 'Dant Manjan Lal' prevents dental diseases. The other certificate is issued by Dr. V.N. Pandey, Ayurvedic Consultant, who describes the formulae and gave details of ingredients of the 'Dant Manjan Lal', to show that each ingredient has therapeutic/prophylactic properties. Except these certificates, the appellants had not produced any acceptable evidence that the product is prescribed by Medical Practitioner as a medicine for any disease or condition. On the other hand, it is admitted fact that the 'Dant Manjan LaL' is for daily use. In the absence of any evidence, we are unable to hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly use and not as a medical prescription for treatment of any disease. 15. The reliance of Deptt. instruction is also not helpful to the appellants as the instructions for classification of the product under Chapter 30 were withdrawn on 10-9-97 and the Hon'ble Supreme Court in the case of Union of India v. Bajaj Tempo Ltd. reported in [1997 (94) E.L.T. 285] held that the Tribunal is not bound by the such instructions. 16. Further, we find that Chapter Note 1(d) of Chapter 30 of the Tariff specifically provides that this chapter does not cover the preparations of Chapter 33 even if they have therapeutic/prophylactic properties. Therefore, the 'Dant Manjan Lal', in view of above, cannot be classified under Chapter 30 of the tariff. 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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