Customs, Excise and Gold Tribunal - Calcutta
Dabur India Ltd. vs Commissioner Of Central Excise, Jsr. on 17 October, 2001
JUDGMENT
Archana Wadhwa
1. The prayer in the Stay petition is for dispensing with the condition of predeposit of duty amount of Rs. 6,60,28,325.10 and an equivalent amount of personal penalty imposed upon he appellants under the provisions of Section 11AC along with determination of interest at the rate of 20%.
2. Shri K.K. Banerjee, ld.Advocate appearing for the appellants, submits that the said demand of duty has been confirmed against the appellants in respect of their two final products manufactured by them i.e. Lal Tail and Janma Ghuti. In respect of Lal Tail. He submits that the appellants had been clearing the said product since long by classifying the same under Chapter 30 as Ayurvedic medicines. An objection was raised by the Revenue in or around January 1999 that the said Lal Tail would be properly classifiable under heading 3304.00 attracting higher rate of duty. Thereafter, eight show-cause notices were issued on various dates raising demand of duty for the past period. Apart from submitting that Lal Tail is properly classifiable as Ayurvedic medicines under Chapter 30, Shri Banerjee, ld.advocate also argues that in most of the cases demand is beyond the normal period of six months inasmuch as the appellants were clearing their product after getting classification list approved. He submits that demand of around Rs. 1.61 crores would be within the period of six months. However, the same has to be taken as cum-duty and giving the benefit of deduction on account of duty element, the demand would come down to around Rs. 1.20 crores.
3. He further submits that the demand of duty of around Rs. 1.94 crores has been confirmed by the Commissioner in respect of other product i.e. Janma Ghunti by changing the classification from Chapter 30 to Chapter 33. He assails the said confirmation of demand on the ground on merits as also on limitation and submits that the said item was being cleared by then under Chapter 30 in accordance with the approved classification lists. As such, a major portion of the demand except an amount of Rs. 39,00,000/- would be barred by limitation.
4. Shri Banerjee also refers to the various decisions of the Tribunal in support of his contention that Lal Tail and Janma Ghunti are Ayurvedic medicines. Particular reference has been made to the decision of this Bench in the case of Pandit D.P. Sharma v. CCEx., Calcutta reported in 2000 (41) RLT 443 (CEGAT) wherein Himtaj Oil has been held to be an Ayurvedic medicament containing ingredients as described in authoritative Ayurvedic books. As regards Janma Ghunti, he submits that the same is an recognised Ayurvedic medicines for the growth of infants and as an effective remedy for stomach ailments arising out of teething period.
5. Shri A.K. Mondal, ld.JDR appearing for the Revenue strongly opposes the appellants' prayer for dispensing with the condition of predeposit of duty amount and relies on the Hon'ble Supreme Court's decision in the case os Shree Baidyanath Ayurved Bhavan Ltd. v. Collector of Central Excise, Nagpur reported in 1996 (83) ELT 492 (S.C.) laying down Dant Manjan Lal (Tooth Powder) is not an Ayurvedic medicines inasmuch as the same is meant for everyday use and does nt require the prescription by a medical practitioner. As such, he submits that inasmuch as Lal Tail is used by common man without the medical prescription of a Doctor, the same has been rightly classified under Chapter 33.
6. We have given our careful consideration to the submissions made from both the sides. We find that as regards the classification list of Lal Tail, the same requires detailed appreciation of the arguments made by both the sides and the evidences on record. The classification of each and every product has to be determined based upon their constitute and other relied upon factors. As such the decision relied upon by the ld.Advocate is distinguishable and the same will be considered at the time of final disposal of the appeal and it can not be said at this stage that the appellants have a prima-facie case in their favour. However, as regards the limitation, we find force in the appellants' submissions that the clearances were being effected by them in accordance with the approved classification lists. As such taking into consideration the overall facts and circumstances of the case including the fact that appellants have not pleaded any financial hardship, we direct twelve weeks from today. Subject to deposit the above amount of duty, the balance amount of duty and penalty shall stand waived and its recovery stayed during the pendency of the appeal. Matter to come up for ascertaining compliance on 18th January, 2002. Subject to ascertainment of compliance with the above order, appeal itself would be taken up for disposal.
Dictated and pronounced in the open Court.