Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Mumbai ... vs Raptakos Brett & Co. Ltd on 8 February, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.I Appeal No. E/253/03 (Arising out Order-in-Appeal No. KKS(3)3/M-VI/02 dated 27.9.2002 passed by the Commissioner of Central Excise (Appeals), Mumbai) For approval and signature: Honble Ms. Jyoti Balasundaram, Vice President Honble Mr.K.K.Agarwal, Member (Technical) ====================================================
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Seen
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Commissioner of Central Excise, Mumbai III
Appellant
Vs.
Raptakos Brett & Co. Ltd.
Respondent
Appearance:
Shri Pramod Kumar, JDR for the appellant
Shri S.S. Gupta, CA for the respondent
CORAM:
Honble Ms. Jyoti Balasundaram, Vice President
Honble Mr.K.K.Agarwal, Member (Technical)
Date of hearing : 8.2.2008
Date of decision: 8.2.2008
O R D E R No:..
Per: Ms. Jyoti Balasundaram, Vice President
The classification of the following products arises for determination in the above appeal:-
1) Norash cream
2) Zerolac C
3) Trophox
4) Threptin Micromix
5) Enterall The asesssees claim for classification of product at serial no. 1 under CET sub-heading 3003.10, for classification of product at serial no. 2 under CET sub heading 1901.11, for classification of serial no. 3, 4 and 5 under 2108.99 have been accepted by the authorities below. The revenue is aggrieved by the acceptance of such classification for the reason that according to the department, product at serial no. 1 is correctly classifiable under CET sub heading 3304.00, product at serial no. 2 falls for classification under CET sub heading 2108.99 and 3 & 4 products falls under CET sub-heading 1901.19 while the product at serial no. 5 should fall for classification under CET sub heading 1901.99.
2. We have heard both sides. We record our finding on the classification of the different products as under:-
3. Norash Cream As far as this product is concerned it is the contention of the revenue that it is a barrier cream to give protection against skin irritants covered by CET sub heading 3304.00. We find from the product literature that it is curative in nature for napkin rash and diaper rash for babies. The mode of use is shown on the packages as under: Apply gently on the affected area. The area should be previously cleaned with water. Application should be a minimum of three times a day. If irritation persists, consult your doctor. The basic ingredient of the product is Dimethicone 20 BPC 20%, zinc oxide IP 7.5%, calamine 1.5%, cetrimide IP 1.125%. The above ingredients are in the proportion as specified in Martindale The Extra Pharmacopoeia 30th Edition as having prophylactic uses on skin rashes that may be caused by the wet nappies of the baby. Dimethicone protects the skin against irritants present in urine. Zinc oxide is used as soothing and protective application. Calamine has an anti-itch action and Cetrimide as an antiseptic against both Gram +ve and Gram ve bacteria. The test report dated 15.2.2000 of the Dy. Chief Chemist is as under:- The active ingredients Dimethicone, Calamine, Cetrimide used in the product under reference find mention in Standard Pharmacopoeia. Dimethicone is employed for the protection of bed sores and napkin rash and to protect the skin against Trauma due to incontinence or watery discharge. Calamine has an astringent action on the skin and used in creams and lotions etc. and cetrimide is a quaternary ammonium disinfectant with properties of Cationic surfactant. It has a bacterial activity against both gram +ve and gram ve bacteria. In view of the above the product under reference has medicinal properties and appropriately covered by P&P medicine other than those which are exclusively Ayurvedic, Unani, Sidha, Homeopathic and Bio-chemic. In view of the above, we have no hesitation in accepting the finding of the Commissioner (Appeals) that this product falls for classification under CET sub heading 3003.10 as a P&P medicament and accordingly uphold the finding.
4. Zerolac C and Enterall We find that the show cause notice proposed classification of these two products under CET sub heading 3003.10. The adjudicating authority had upheld the claim of the assessee for classification of Zerolac C under CET sub heading 1901.11 as an infant food and of Enterall as a miscellaneous edible preparation under CET sub heading 2108.99. In the appeal before the Commissioner (Appeals) the revenue raised the plea for classification of Zerolac CET sub heading 2108.99 and for Enterall under CET sub heading 1901.11. The adjudicating authority has given detailed reasons as to why the products will not fall under heading proposed in the show cause notice and for accepting the claim of the assessee for classification of these two products. The Commissioner (Appeals) has rightly held that the claim for a new classification of these two products is not an issue arising out of the adjudication order and therefore cannot be taken up at the appellate stage for the reason that the appeal would arise only out of the impugned order by challenging the reasoning of the adjudicating authority. We, therefore, uphold the finding of the authorities below of classification of these two products under CET sub heading 1901.11 and 2108.99 respectively.
5. Trophox and Threptin Micromix Trophox is made from defatted soya flour by mixing with hydrogenated vegetable fat which is baked and mixed with skimmed milk powder and vitamins and minerals. Threptin is made by mixing sodium caseinate, skimmed milk powder, sucrose, minerals, vitamin and flavour. These two products are to be consumed only after mixing in boiling water or milk. The protein content of Trophox is 43% and carbohydrate is 3705%. In respect of Threptin micromix, the protein content is 25% and carbohydrate is 64%. Trophox is used for increased protein requirements such as during convalescence, pregnance and lactation, diabetic persons and cardiac patients. Threptin micromix is used as a protein supplement for pregnant women, lactating mothers, growing children, teenagers, the aged, the underweight and general ill-health. Both the products predominantly contain protein as a major constituents and are used as protein supplements. They therefore satisfy the requirement of note 9 to Chapter 21 which states that heading 21.08 inter alia, includes protein concentrates and textured protein substances, preparations for use, either directly or after processing (such as Cooking dissolving or boiling in water, milk or other liquids) for human consumption. These products are in the nature of food supplement and cannot be considered as food preparation although they contain flour (Chapter 19.01 covers food preparation of flour.) In other words, they are not food preparation but food supplement. In view of this, and in view of the fact that they satisfy the requirement of note 9 to Chapter heading 21.08, we see no reason to interfere with the finding of classification of these two products under CET sub heading 2108.99 as miscellaneous edible preparation not elsewhere specified or included.
6. In the result, we uphold the impugned order on classification of the five products in question and reject the appeal.
(Dictated in Court) K.K.Agarwal Ms. Jyoti Balasundaram Member (Technical) Vice President sr 5