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TMI Blog2005 (2) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... lves; that the following words are clearly printed on the labels :- Caldhan - "Animal feed supplement" "Not for medicinal use" Livfit Vet - "Poultry Feed Supplement" "Not for medicinal use" 2.2 He, further, mentioned that the impugned products are not bought and sold as Ayurvedic medicaments that the samples of the products were drawn and the CRCL has opined that Ayucal Premix and Livfit can be considered as animal feed supplements; that in respect of Caldhan suspension, the CRCL has opined that the product may be considered as medicament; that ignoring these test reports the Commissioner has relied upon the reports given by Indian Veterinary Research Institute which has classified the impugned products as Ayurvedic medicaments. He submitted that it is settled legal position that when the CRCL has given its report, Revenue is not to go by opinions given by some other authorities. He relied upon the decision in M.P. Industries v. CCE - [2002 (145) E.L.T. 448 (T)]. 3.1 The learned Advocate mentioned that the Commissioner has given the following reasons for classifying the impugned products as veterinary medicaments (i) Products contain Ayurvedic Ingredients. (ii) They are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deficiency of calcium and phosphorus in respect of cattle and horses, sheep and goats; that Livfit Vet is recommended for chicks, layers/broilers; that it is also recommended for offsetting the damaging effects of aflatoxins, restoring reduced feed intake, improving liver functions, better feed utilization, growth, livability and production; that it is for keeping the liver fit. He also mentioned that the Adjudicating Authority has completely ignored the voluminous evidences adduced by them in the form of export opinion from various doctors, research institutions and end users certifying that the products are animal feed supplement; that the opinion is unanimous in that these products are not used as medicines as it can not cure a disease or prevent the disease as a medicine. He referred to some of such opinions/certificates which are as under :- (a) Dr. M A Mujeeb Ather, Poultry Pathologist, Veterinary Biological Research Institute, Hyderabad. (b) Dr. V.S. Narsapur, Head of Department, Bombay Veterinary College (Retired), Mumbai. (c) Dr. Mahesh Kumar, Associate Professor, Department of Veterinary Clinics, Govind Ballabh University of Agriculture & Technology, Pantnaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 23.02 of Central Excise Tariff Act, 1985 reads 'Preparations of a kind used for animal feeding including Dog and Cat food..' The term used here is very important. For satisfaction of this term, we have to examine as to how the product is used. We have examined the use of the preparation and the label. We have also seen the expert opinion and the affidavits of the Dealers/Users indicating that the product is known as animal feed supplement by the trade who use this preparation or who deal in these preparations. Thus, the labels, affixed on the preparations for the purpose of sale, Certificates by the Experts and Manufacturers' Association and the Affidavit by the Users/Dealers clearly indicate that the preparations are animal feed supplements." He also stated that the Supreme Court has affirmed the decision in CCE, Bangalore v. Tetragon Chemie P. Ltd. [2001 (132) E.L.T. 525 (S.C.)] Reliance has also been placed on the decision in the case of CCE, Vadodara v. M.J. Agro Chemicals [2000 (118) E.L.T. 116 (T)] wherein the products were classified as animal feed supplement and not as medicament under Heading 3003.10 of the Tariff, Li Taka Pharmaceuticals v. CCE, Mumbai [2000 (121) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order and emphasised that the impugned products contain herbs and are recommended for substantial therapeutic use and administered as per doses prescribed for a limited period or as prescribed by veterinarian, that Ayucal premix is also to be administered by mixing uniformly in feed for 7/10 days or as advised by Veterinarian and prevents rickets, prolapse, osteoporosis and osteomalacia. She also emphasised that on some of the samples, the words "Physician's Sample" were mentioned which goes to show that the impugned goods are medicaments; that it has been held in the case of Shree Baidynath Ayurved Bhawan Ltd. v. CCE, Nagpur [1996 (83) E.L.T. 492 (S.C.)] that medicine is ordinarily prescribed by medical practitioner and it is used for limited time and not every day unless it is so prescribed to deal with a specific disease. Finally, the learned Senior Departmental Representative submitted that the larger period of limitation is invocable for demanding duty inasmuch as the Appellants have suppressed and not disclosed material facts namely use of products as medicine which is vital factor for determining the classification of a product. 8.1 We have considered the submissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odine, etc." Heading also covers preparations, known in trade as "pre-mixes" which are generally speaking, compound composition consisting of a number of substances (sometimes called additives). These substances are of three types - (1) Those which improve digestion; (2) Those designed to preserve the feeding stuffs; (3) Those which serve as carriers. 8.4 The Larger Bench of the Tribunal has the occasion to examine the scope of Heading 23.02 in Tetragon Chemie (P) Ltd. v. CCE [2001 (138) E.L.T. 414 (Tri. - LB). The Larger Bench has held, after analyzing the technical literature, that "preparations containing vitamins, proteins, carbohydrates, minerals, etc. are feed additives or supplementary feeds for animals." The Larger Bench has also held that for the purpose of satisfying the term "preparations of a kind used for animal feeding", "We have to examine as to how the product is used." 9.1 The Adjudicating Authority has referred to the uses of the products, given on the packing thererof in Para 18.1 of the impugned order. A perusal of the packing material reveals that the Product Livfit Vet (Concentrate Premix) has been recommended for growth promotion in broilers, layer chick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product to be classified as a medicament, it is pre-requisite that the product is for therapeutic or prophylactic uses. This requirement is not satisfied in respect of the impugned products. 10. Now coming to the test reports and opinions brought on record by both the sides, we observe that the CRCL has opined that the Livfit Vet is not described in authoritative books for ayurvedic medicines and it can be considered as Animal fed supplement. CRCL has also opined in respect of Ayucal Premix to be animal feed supplement. The Centre of Advance Studies, Izatnagar refrained itself from giving a clear finding in respect of Livfit Vet and suggested that the Department can decide the product on the basis of governing Rules and difference between 'annual feed supplement' and 'medicaments'. The Office of Animal Nutritional Institute, Jaipur has mentioned that at the institute, they only make proximate analyses of the animal food and the samples of the Livfit Vet Liquid/concentrate and Caldhan do not fall in the category of animal food. It is not the case of Appellants that these products are animal food as these are feed supplement. On the other hand, the Appellants have produced a number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumption of egg or use of a particular shampoo, etc. for a limited period. Such recommendation will not make all these products a medicament. The learned Advocate has referred to the opinion of Dr. Mahesh Kumar, Associate Professor of G.B. Pant University of Agriculture & Technology. Dr. Mahesh Kumar has opined that caldhan can be recognized as a tonic or feed supplement only which provides low levels of calcium or phosphate to the animals and thereby helps in maintaining tonicity of muscles; caldhan cannot be used for therapy of milk fever as it provides only 325 mg calcium per 20 ml whereas for the therapeutic management of milk fever, a minimum of 100-150 g calcium should be given intravenously as 20-30% solution. The Chemical Examiner has also not commented on the words "NOT FOR MEDICINAL USE" printed on the label. The Revenue, thus has not succeeded in proving that any of the impugned product is having therapeutic or prophylactic properties. Accordingly, these products are not Ayurvedic Medicament falling under Heading 30.03 of the Central Excise Tariff. 11. We also agree with the learned Advocate that the extended period of limitation for demanding duty is not invocable ..... 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