Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Of Central Excise, ... vs M/S Tetragon Chemie (P) Ltd., ... on 7 June, 2001
Equivalent citations: 2001(77)ECC351, 2001(135)ELT1435(TRI-BANG)
ORDER
Shri S.S. Sekhon
1. These three appeals are filed by Revenue against the order of the Commissioner, who after considering the submissions found-
(a) the dispute related to classification of following items as animal feed supplements under heading 2302.
(1) E-Care Se Forte (2) 3 Care (3) Calidox (4) Nutriliv Forte (5) Neocare Forte (6) Dot care & Super Dot (7) UTPP 5 (8) L Mezole Plus (9) Bio Care/Bio Care Forte (10) Vitamin Premixes (11) AB2D3 Triple Strength (12) Choline 500 (13) Yea-Sacc 1026 (14) Lysocare/Methocare (15) Electrocare plus which were proposed for classification as Medicaments, Vitamins or cattle preparation under heading 3003.10. 2936 or 2922 or 2923 or 2102 based on pamphlets, literature & export opinions and duty was demanded, by denying the benefits of Notification No. 175/86 and 1/93.
(b) And reading the HSN Notes under Chapter 23 and considering the following evidence on record-
(i) All products are "premix" products.
(ii) All products consists of one or more active ingredients in a "carrier" material.
(iii) None of the products confirm to any medicament standard or pharmacopeia for eg. IP,BP,USP, etc.
(iv) All products are EXCLUSIVELY FOR ANIMAL FEEDING. They have no general purpose application.
(v) In the trade consisting of Dairy, Poultry and Aqua farmers, feed mills and among professionals consisting of Veterinarians and animal nutritionists, our products are referred to as Feed supplements/pre-mixes/Concentrates. (This has been confirmed in our detailed submission vide Anx. G. page 152 to 169).
(vi) We have confirmed from the Drug Control Authorities both Drugs Controller of India and Drugs Controller of Karnataka who opined that our products do not come under Drugs & Cosmetics Act and therefore are not "Drugs" and therefore do not belong to Chapter 30 of CET, (See Anx.'N' page 186 to 190).
A clarification issued by Customs Corporation Counsel as follow:-
"2309.90 - Fodder supplements being a mixture in approximately equal proportions of vitamins of heading 29.36 and bran for use as fodder supplements."
And expert opinions of -
(i) Certificate dt. 24.4.95 issued by the Principal investigator & Professor, ICAR Ad hoc Scheme, Deptt. Of Poultry Science,Madras Veterinary College, Madras.
(ii) Opinion of Dr.(Lt. Col) H.S. Dawra, Divyung Agri. & Stud Farm Pvt. Ltd.,
(iii) Dr. S.K. Shukla, Assoc. Prof. Department of Medicine,College of Veterinary Sciences, Patnagar,dt. 15.4.95.
(iv) Dr. R. Kadirvel, Prof. & Head, Deptt. of Animal Nutrition, Madras Veterinary College, Madras dt.21.4.95.
(v) M.R. Choudhary, Director, Central Poultry Training Instt. Govt. of India, Hesaraghatta, Bangalore dt 10.1.91.
(vi) Dr. M.S. Parthasarathy, Dvnl. Manager (Foods), Karnataka State Agro-Corn Products Ltd., Bangalore.
(vii) Dr. G. Devegowda, Professor and Head, Deptt. of Poultry Science, University of Agricultural Science, Hebbal, Bangalore dt. 15.12.94.
(viii) Opinion dt. 16.9.95 of Drugs controller, Govt. of Karnataka, Drugs Control Deptt., Bangalore.
(ix) Affidavits of dealers.
(x) The fact that 3 CARE & CALIDOX were not manufactured by them, but they only traded in these goods and AB2D3K TRIPLEX STRENGTH & enon V 500 are imported goods repacked from bulk to retail packs , and no duty could thus be demanded on these traded/repacked goods.
(xi) Relying upon Boards Order No. 188/22/96-Cx dt. 26.3.90 & Trade Parlance test laid down by Apex Court and recording-
"Since the department has not discharged the onus or burden of proof as required in law, with regard to any of the disputed products and the assessee has submitted the affidavits of the dealers of the disputed goods as stated in para 36 supra, I accept the assessee's submission, that the 9 goods are correctly classifiable under Chapter heading 2302 of the CTA 85."
concluded-
"As regards Vitamin Pre-mixes, for the reasons stated at para 40 supra, I consider the said product as classifiable under Chapter 2302 of CETA 1985.
As regards Cholin 500, the department has not at all discharged its onus or burden of proof. However, after careful consideration of the records of the case, I extend the benefit of doubt in favour of the assessee and classified the said product namely Cholin 500 under Chapter Heading 2303 of CETA 85."
2.The Revenue has not formulated, any specific ground in this appeal (filed in from EA-5). However from order No. 57-R/98 dt. 26.2.98 passed by the Commissioner was not found legal & proper for the following reasons-
"The Commissioner observed that 'since the department has not discharged the onus or burden of proof as required in law which regards to any of the disputed products and the assessee has submitted the affidavits of the dealers of the disputed goods as stated in para 36 supra, he accepted the assessee's submission, that the 9 goods are correctly classifiable under chapter heading 2302 of the Central Excise Tariff Act'85. Whereas the department clearly discharged the onus of burden of proof as required in law, with regard to each of the disputed products, as detailed in the show cause notice. The major dispute is whether particular product is medicine or feed supplement/feed additive. The department relied on the expert opinion given by Dr. B Jagadish Kumar, Professor, Department of Pharmacology, Veterinary College, Hebbal, Bangalore. Whereas the Assessee has produced opinion of some other persons qualified in the subject. But the opinions produced by the assessee is general in nature with respect to feed supplements and given with particular reference to the items manufactured by the assessee. As against this the opinion produced by the department is with reference to each individual item after studying the composition of each product. Hence the Commissioner erred in rejecting the department's evidence which is very specific and clear."
3. We have heard both sides and considered the material and submissions and find-
(a) There is no ground taken or grievance made by the revenue, as regards the question of applicability of the Boards Order, applied by the Commissioner to the classifications under 2302 as animal feed supplement. Therefore, keeping the respondents Advocates submissions regarding the binding nature of the same and no material relied in the appeal to dislodge the Commissioner's finding thereon, induces us to find this appeal to be without any substance.
(b) We find that the Revenue, it appears from the Boards Order on record is aggrieved only on the reliance on the affidavits of the dealers and non consideration of the labels, etc. and the expert opinion relied by them in the Show Cause Notice. There are no other reasons taken, as to why the big list of other experts opinions, relied upon by the Commissioner was not correct. We find that the Commissioner has considered the material evidence in the Show Cause Notice vis-a-vis the evidence brought before him by the defence, which is not being challenged. We can find no infirmity in the act of reliance placed by the adjudicator on the evidence produced in defence especially in light of findings, as arrived at in para 44 of the impugned order.
(c) The Revenue has not challenged the interpretation of the findings as regards the scope of heading entry 2302 of CETA, vis-a-vis in HSN. The appeal also alleges, that these notes, do not apply to some of the goods. If they accept the same for others, the appeal should have been restricted to the specific other goods.
(d) We find the Commissioner has relied upon the Custom Corporation Council's Tariff opinion on scope of Animal Feeds, under chapter 23. No grounds are taken in the appeal, against the same. This Tariff opinion cannot be ignored or brushed aside since such Tariff opinions issued are based on interpretation of HSN system of classification by the International Body of Experts. As regards the products, Electro plus care, 3-Care, Colidox, Neocare Forte, Dot Care & Super Dot we have considered the grounds and find-
(i) Electro care plus- the Drug Controller has rejected to register the same as a drug, and Drug Controllers certification have not been questioned in appeal. The ground taken in appeal that 'show cause notice' alleges it is want for therapeutic use only does not enthuse us to find an item to be a 'medicament' if Drug Controller does not register it. No other evidence of therapeutic use only is relied in the appeal.
(ii) 3-Care & Colidox are found by the Adjudicator not to be manufactured by the Respondent. No evidence as regards this finding is in appeal before us. We find no grounds to classify Goods found not to be manufactured under CETA 1985.
(iii) Neocare Forte-it is manufactured and sold as it is, and has been excluded from the list of manufactured products by Assistant Collector Order No. 108/96 dt. 14.6.96. Therefore there is no reason for us to classify the same in this appeal.
(iv) Dot Care & Super Dot- Same has been classified under Chapter 23 for the subsequent period by Assistant Commissioner's order No. 108/96 dt. 14.6.96. This order is stated to have become final.
(e) As regards the grounds taken in respect of Yea Saac 1026, proposed to be classified under 2102.00 as 'yeast',we find that the jurisdictional Assistant Commissioner vide his order 108/96 dt. 14.6.96, has categorically held this product to be only a repacking activity from imported 25 Kgs bags into retail packs and the same has been classified by Custom House as Animal feed and will thus be excluded from the Classification List filed as an exigible product. This order of the A.C. is on other similar/same goods, approving them as under 'Animal Feeds' and no evidence has been produced before us, that the same is under challenge in appeal. We find no infirmity in the classification arrived at by the Adjudicator and reject the grounds to classify that item under 2102.
(f) We find that the Respondents had admitted before the Adjudicator, regarding the duty liability on L-MEMLE PLUX and paid the duty. The appeal therefore setting aside the entire Order was not called for nor the entire Show Cause Notice was required to be set aside as ordered by the Commissioner. The demand recorded in para 38, if paid, should have been confirmed. We do not think for this correction, there is a need to remand the matter back to the Adjudicator.
4. Before we part with this case, we would like to observe, that the certified copies of the Boards Order 57-R/98 dt.26.2.98 contain lot of hand written, additions, including the words "correct"; legal or proper and whether the case may be remanded back for de novo adjudication" interpolated in the prayer made, without bearing the initials of the learned Member CBEC, authorizing the same or even the Assistant Director (Review) forwarding the same having attested it. This induces us to reject the present appeal based on Apex Courts decision in CCE Vs Rohit Pulp Paper Mills 1998 (101) ELT 5(SC), since the application of mind to be applied to arrive that "the order to be legal or proper" by the appropriate authority is itself in the realm of a doubt, Appeals filed by Revenue, as provided under law are, by Sui - generis procedure prescribed, have to be a serious effort and not an empty formality exhibited by hasty corrections and extra polatious by hand of a typed order, which is not even signed by the learned Member Board. It being only attested and copies forwarded by Assistant Director (Review) will not serve the procedure established by law.
5.In view of our findings, we dismiss the present appeal filed by the Revenue.
(Pronounced in the court on 7.6.2001)