Customs, Excise and Gold Tribunal - Delhi
Shree Baidyanath Ayurved Bhavan Pvt. ... vs C.C.E. on 5 February, 2004
Equivalent citations: 2004(96)ECC198
ORDER V.K. Agrawal, Member (T)
1. The issue involved in this appeal, filed by M/s. Shree Baidyanath Ayurved Bhavan Pvt. Ltd., is whether Dant Manjan Lal, manufactured by them, is classifiable as ayurvedic medicine under heading 30.03 of the Schedule to the Central Excise Tariff Act or the same is classifiable under Sub-heading 3306.10 as tooth powder and tooth paste and whether the demand of duty can be confirmed against them.
2. Shri Vivek Kohli, learned Advocate, fairly mentioned that the Larger bench of the Tribunal in their own matter as reported in 2002 (140) E.L.T. 459 (T-LB), has held that Dant Manjan Lal is classifiable under heading 33.06 of the Central Excise Tariff as tooth powder. He, however, mentioned that the appeal, filed by them, has been admitted by the hon'ble Supreme Court as per order dated 28.07.03. He has, further, submitted that the demand of duty cannot be confirmed against them as the CBEC has clarified, vide circular dated 25.9.91, that Dant Manjan Lal manufactured by them, would merit classification as ayurvedic medicine; that this Circular has been withdrawn by the CBEC only on 31.10.96 under circular no. 259/93/96 CX dated 31.10.96; that the Board issued a fresh circular on 28.5.97 to classify Dant Manjan Lal as ayurvedic medicine, which has been withdrawn only on 10.9.97. The learned Advocate mentioned that it has been held by the hon'ble Supreme Court in the case of C.C.E., Vadodara Vs. Dhiren Chemical Industries, 2002 (139) E.L.T. 3 (S.C.) that regardless of the interpretation by the Supreme Court, if there are circulars issued by the CBEC placing a different interpretation, that interpretation will be binding upon the revenue; that same view has been reiterated by the Supreme Court in the case of C.C.E., Vadodara vs. M/s. Dhiren Chemical Industries, 2002 (143) E.L.T. 19 (S.C.).
3. Countering the arguments, Sh. V. Valte, learned S.D.R., submitted that the Supreme Court has considered the classification of Dant Manjan Lal in Shree Baidyanath Ayurved Bhawan Pvt. ltd. vs. C.C.E., 1996 (83) E.L.T. 492 (S.C.) holding the goods not to be an ayurvedic medicine; that demand of duty in the present appeal pertains to the period after the judgment of the Supreme Court in appellants' own case; that the circular of the Board cannot change the judgment delivered by the Supreme Court, which is the law of the land; that the ratio of both the decisions in Dhiren Chemical Industries Case (supra), pertains to the period prior to the decision delivered by the Supreme Court and not for the subsequent period. Reliance has also been placed on the decision of the Tribunal in appellants' own case as reported in 2002 (150) E.L.T. 1290 (T).
4. We have considered the submissions of both the sides. In view of the supreme Court's decision in appellants' own case as well as the Larger bench decision classifying Dant Manjan Lal under heading 33.06, the classification, as ordered by the Commissioner (Appeals) under the impugned order, is upheld. The product Dant Manjan Lal is classifiable under sub-heading 3306.10 of the Central Excise Tariff Act. The demand of duty confirmed against them pertains to the period after pronouncement of the judgment in their own case by the supreme Court wherein their product was not held to be an ayurvedic medicine. The similar contensions, relying upon the decision in Dhiren Chemical Industries case (supra), has been considered by the Tribunal in appellants' own case as reported in 2002 (150) E.L.T. 1290. The Tribunal has held, therein, as under :
"In our view in Dhren Chemical case Supreme Court's decision regarding binding nature of the circular refers to the past period and not to the period subsequent to the decision. If there were any circulars which had placed different interpretation upon the phrase which was the subject matter of the interpretation in Dhren Chemical case, according to the supreme Court, that interpretation would be binding upon the Revenue. Obviously the interpretation now placed by the Supreme Court in Dhren Chemical will be the Law of the Land for the future. This is apparent from the second decision in the case of CCE vs. Dhiren Chemical Industries, 2002 (143) E.L.T. 19 (S.C.) that there are circulars issued by the Central Board of Excise & Customs which placed a different interpretation upon that phrase and which apply to the facts of the two appeals before the supreme Court and accordingly the appeals were dismissed. In the present matters before us the period involved in all the appeals is from December, 1995 onward and the decision of the Supreme Court in the appellants own case for the same product holding it not classifiable as Ayurvedic medicine was pronounced on 30.3.1995. After the decision of the Supreme Court which is the law of the land as per the provisions of the Constitution of India the said decision will prevail and Government's instructions dated 25.9.91 cannot hold good for concluding that demand for sic months cannot be raised. We do not find any substance in the submissions of the learned Advocate that the said decision of the Supreme Court as reported in 1996 (83) E.L.T. 492 (S.C.) was under old Central Excise Tariff. The change in the Tariff will not make the product an ayurvedic Medicament."
5. Further, no benefit will be available to the appellants on account of Board's letter dated 28.5.97 as the same has been superceded by a subsequent letter dated 10.9.97 itself. Secondly, a product is either ayurvedic medicine or not an ayurvedic medicine irrespective of the fact that the Supreme Court decision was under the old Central Excise Tariff and not under the new Central Excise Tariff. The decision of the Supreme Court cannot be made ineffective merely by issuing a letter. It has been held by the Supreme Court in the case of Commissioner of Income tax vs Anjum M.H. Ghaswala & Ors., 2002 (1) SCC 633 that every clarificatory note of press release issued by the Board does not have a statutory force like the circulars issued under Sec. 119 of the Income Tax Act. The Supreme Court has held that "it is only those circulars issued by the Board under the provisions of Section 119 of the Act will have the statutory force and will be binding on every Income-tax authority. Therefore, the press release, relied upon by Sh. Ramamurthy, not being a circular issued under Sec. 119 of the Act, will not be of any help to the respondents in support of their contentions". We, accordingly, find no merit in the appeal which is rejected.