1999(11)LCX0223

IN THE CEGAT, SOUTH ZONAL BENCH CHENNAI [SITTING AT BANGALORE]

Justice K. Sreedharan, President and Shri V.K. Ashtana, Member (T)

COMMISSIONER OF C. EX., BANGALORE

Versus

AMAZON DRUGS (P) LTD.

Final Order No. 2926/99, dated 17-11-1999 in Appeal No. E/R-445/97

Advocated By : Shri S. Kannan, DR, for the Appellant.

None, for the Respondent.

[Order per : Justice K. Sreedharan, President]. - The Respondent manufactures vitamin preparation with the trade name “glow up tonic”. In the Classification List produced by them, it was put as falling under sub-heading 3003.10. Department took up the stand that it is to be classified as item falling under 2936. Authorities below, upheld the classification given by the manufacturer. Challenging the orders passed by the authorities below, Revenue has come up in this appeal.

2.  When the appeal came up for final hearing, we heard Learned Departmental Representative. Respondent has sent a letter dated 17-11-1999, requesting us to dispose of the appeal on merits as the product falls under sub-heading 3003.10 under the Tariff. A decision in the case of M/s. Micronova Pharmaceuticals Pvt. Ltd., the Tribunal Final Order No. 368/96-C, dated 31-5-1996 has been cited as one deciding issue in their favour.

3.  Show Cause Notice was issued to the respondent herein, namely, the manufacturer, requiring him to state why his product should not be classified under Tariff Heading 2936.00. The Tariff Heading 2936 deals with “Pro-Vitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and inter-mixtures of the foregoing, whether or not in any solvent”. In reply the manufacturer claimed that their products falls under sub-heading 3003.10, that reads as, -

“Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic”.

In the appeal, the stand taken by the revenue is that the produce falls under Tariff Heading 2108.91 which is in the following terms :

“Not bearing a brand name“.

The present stand taken by revenue is just contrary to the one taken in the Show Cause Notice.

The manufacturer’s explanation as to why the produce should not fall under 2108.91 was not called for either. Further the reasoning given by the adjudicating authority, namely, the Assistant Collector in her Order-in-Original No. 33/94, dated 24-8-1994 brings out all reasons for classifying under 3003.10. We quote the following observations made by her with approval :

“In the case of “GLOW UP” tonic, vitamins are combined with protein, iron, and L-Lysine mono hydrochloric and zinc. Therefore, the parameters set out in Chapter Sub-heading 2936.00 which speaks purely of vitamins and inter-mixtures of vitamins would not be satisfied. Similarly the combination of ingredients other than vitamins to both the above products would exclude them from the scope of Note-1 of Chapter 29 especially as qualified at sub-notes C, D, E, F & G.

The Therapeutic uses of the Assessee’s product can be clearly gauged from the respective labels and packing as also the functions ascribed to the ingredients of the concerned formulations. Therefore, the assessee’s products satisfy the meaning of “Medicaments” as defined in Ch. Note 2(1) as products mixed or compounded together for therapeutic or prophylactic use. Further, the products are manufactured under the brand name “Amazone Drugs Pvt. Ltd.” which complies with the meaning attributed to “Patent or Proprietary Medicaments” in Note 2(ii) to Chapter 30.

It would therefore appear that classification as claimed by the assessee in 3003.10 is in order as it has been established that the products are in the nature of clearly patent or proprietor medicaments, and would thereby continue to be eligible for the benefits of Notification 171/70 and 48/77”.

4.  We are not persuaded by Mr. Kannan, the learned DR to take a different view on the sole ground that the goods manufactured contain 55% of protein and that it has no therapeutic value and in view of what has been stated above, we find no merits in this appeal, it is accordingly dismissed.

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Equivalent 2000 (116) ELT 599 (Tribunal)

Equivalent 2000 (039) RLT 0101