2000(10)LCX0193

IN THE CEGAT, WEST ZONAL BENCH, MUMBAI

S/Shri Gowri Shankar, Member (T) and J.N. Srinivasa Murthy, Member (J)

COMMISSIONER OF CUSTOMS, MUMBAI

Versus

CADILLA CHEMICALS LTD.

Order No. 3724/2000-WZB/C-I, dated 14-10-2000 in Appeal No. C/517-R/95-Bom.

Advocated By :   Shri B.B. Sarkar, JDR, for the Appellant.

Shri M.J. Nambiar, Consultant, for the Respondent.

[Order per : Gowri Shankar, Member (T)]. - M/s. Cadilla Chemicals Limited, the respondent to this appeal filed by the Commissioner, imported a consignment of glucomannan, bearing the trade name Propol A. Classification was claimed under the Heading 1302.19 of the Customs Tariff. This is for vegetable extracts. The Custom House was of the view that the product was a herbal medicine which was imported in order to make use of its therapeutic properties for reduction of blood glucose level and proposed classification of the goods under Heading 30.03 of the tariff. The importer waived issue of written notice and was heard. The Assistant Commissioner passed order confirming the classification under Heading 30.03.

2. The importer appealed this order. The Commissioner (Appeals) accepted the contention raised before him that the product was a single vegetable extract and therefore not classifiable under Heading 30.03 which is specific for medicaments consisting of two or more constituents which have been mixed together. He was also influenced by the report of the Deputy Chief Chemist that the product was not a medicament. He found the classification claimed by the appellant under Heading 1302.19 to be proper, accepted it and therefore set aside the Assistant Commissioner’s order. Hence this appeal by the department.

3. In the appeal originally filed the department has sought classification of the product under 30.03. A miscellaneous application was filed on 6th February, 1996 for adding a ground to the appeal filed. This ground, which was permitted to be added to the appeal by Tribunal’s order dated 10-6-1996, seeks classification of the goods under Heading 1302.39. There is also prayer for remanding the same for de novo adjudication. In the earlier proceedings, classification under Heading 1302.39 was not at all an issue. It was not claimed by the department or the importer. This is entirely a fresh ground.

2. The representative of the respondent objects to accepting this ground on this basis. The fact that this ground has been permitted to be raised for inclusion, on which the departmental representative places reliance, does not by itself means it must necessarily be accepted, as correct. The departmental representative is not able to say why this aspect is not to be included in the earlier proceedings. Even on merits, it is not possible to consider this product as mucilages. Mucilage is defined in the Hawley’s Condensed Chemical Dictionary as follows :

“A plant product obtained from seeds, roots, or other parts of plants by extraction with either hot or cold water. Mucilages give slippery or gelatinous solutions, e.g., those from guarbean, linseed, locust bean, and related leguminous plant seeds. Generally plant mucilates are insoluble in alcohol, but some are partly soluble in water and partly soluble in alcohol. From various types of saltwater algae the so-called seaweed mucilages, such as agar, algin, and carrageenin (sometimes referred to as algal polysaccharides) may be obtained by extraction with hot water. Mucilages are closely related to gums, and the distinction between them is not always clear.”

3. Emphasis in the definition that the distinction between mucilages and gum is not been always clear is significant. The only basis shown in the appeal for treating the product for mucilage is that it swells in cold water. Mucilage is not the only product that swells in cold water. Many substances do so. The fact that the product under consideration does so is not by itself sufficient to determine its classification as claimed.

4. We do not find the reasons cited sufficient to state that the goods must be treated as mucilage. The appeal cites ten clinical uses of the product. However, it is not possible to say that the Commissioner (Appeals) view that because it is unmixed and was not imported unsuitable for retail sales it cannot be under Heading 30.03, is incorrect. We are therefore unable to accept this proposed classification.

5. Appeal dismissed.

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Equivalent 2002 (139) ELT 0362 (Tri. - Mumbai)