Customs, Excise and Gold Tribunal - Mumbai
Mac Laboratories Ltd. And U.S.V. Ltd. vs Commissioner Of Central Excise on 12 January, 2004
Equivalent citations: 2004(167)ELT412(TRI-MUMBAI)
ORDER S.S. Shekhon, Member (T)
1. These two appeals are being disposed of by this common order.
2. The issue involved in this case is the classification of certain entities, which are formulations of vitamins with other substances, expectorants and stabilisers etc. The Commissioner (Appeals) vide the impugned order has come to the following conclusions to determine the classification to be under Heading 29.36 of CET 1995 and not under Heading 3003.10 thereof.
(i) The cartons and labels containing description of the product if applied with reference to chapter note 2 (1) of Chapter 30, it appears that the said products are other than medicaments not aimed to cure any ailment and therefore do not satisfy the condition of chapter note.
(ii) That the products, which are marketed/sold through chemist or druggist under purview of Drugs & Cosmetics Act, should not always be medicines. Mere administration in doses in particular quantity as done in case of medicines does not qualify the products to fall under Chapter Sub-heading 3003.10. The labels of products clearly suggest that the ingredients Vitamins & mixtures thereof to qualify them to merit classification under chapter Sub-heading 2936.
(iii) The vitamins are administered along with the medicines and even after the severeness of the illness is subsided and so also after discontinuation of medicines which are target to cure the illness that is, during the convalescing stage.
(iv) During illness, the ailing person is not able to take normal diet thereby the quantum of vitamins necessary for the human body is insufficient which may cause disability like colour blindness, weakness of immune system, loss of memory and malfunction of organs.
(v) Therefore, vitamins are administered in the human body in measured dozes to an ailing person under supervision of Medical Practitioner, which is also the reason why it is governed by FDA rules. Therefore, appellants justification that products are governed by FDA is not sustainable.
(vi) The vitamins do not have any curative value and never administered to cure a particular ailment.
3. After hearing both sides and considering the issues involved, it is found that :
(a) There is no reason arrived at, in the orders of the lower authorities, as to how the entity in question is not having therapeutic and prophylactic activities to qualify as the medicament.
(b) They have not based their findings on any expert's opinion. The appellants on the other hand contends that these multivitamin formulations has a prophylactic effect in aiding night vision, Xeropthalmia, night blindness, absorption and metabolism calcium (prevents Rickets) and phosphorous, pellagra, scurvy, alopecia, Neuritis, Beriberi, Stomatitis, anaemia etc. There is no finding as to how these diseases are not prevented and/or cured by these formulations of vitamins.
(c) The issue of classification of entities which contain mixtures of vitamins along with excipients has been decided and it has been held that they are are classifiable under Heading 3003 in the decision in Amazon Drugs (P) Ltd vs CCE 2000 (39) RLT 101 (CEGAT) and in the case of Micronova Pharmaceuticals Pvt Ltd vs CCE, Bangalore (Final Order No. 368/96-C dated 31.5.1996. The appellants have also relied upon the Tribunal's decision in CCE, Bangalore vs Juggat Pharma Ltd 1999 (114) ELT 707 (Tribunal). No decisions contra have been shown by the Revenue. Therefore, following these binding decisions, the classification of the subject entities has to be confirmed in Heading 3003.10.
(d) As regards the decisions relied upon by the learned D.R., it is found that the case of Glindia Ltd vs CCE (1988 (36) ELT 479 (Bom) was on animal feed supplements containing vitamins and not on formulations of vitamins, as in this case. The case of Shri Baidyanath Ayurvedic Bhavan Ltd vs CCE 1996 (83) ELT 492 (S.C) was the case on findings on medicine which vide this decision is something that is prescribed by a medical practitioner for limited use in certain time, which is in the present appellants case exists as claimed and not refuted in the finding by lower authority. It is found from the paper book that the appellants have given the evidence of the dosage of vitamin to be as per the prophylactic standards prescribed for the said vitamin, in the mixtures.
(e) In this view of the matter, no merits are found in the order of the Commissioner (Appeals) and the same is required to be set aside, after setting aside the classification under Heading 29 and confirming the same under Heading 3003.10.
4. The appeals are allowed in the above terms.