Custom, Excise & Service Tax Tribunal
M/S. Time Pharma vs Cce Thane Ii on 31 January, 2018
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
E/1052,1053/09, E/1660/10
E/85466/16, E/85467/16
(Arising out Order-in- Appeal No. SB/20 & 21/TH-II/09 dated 23.07.2009 passed by the Commissioner of Central Excise (A), Mumbai)
For approval and signature:
Honble Shri Ramesh Nair, Member (Judicial)
Honble Shri Raju, 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 No 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?
M/s. Time Pharma
Appellant
Vs.
CCE Thane II
Respondent
Appearance:
None for the appellant Shri S.V. Nair, AC (AR) for the respondent CORAM:
Honble Shri Ramesh Nair, Member (Judicial) Honble Shri Raju, Member (Technical) Date of hearing : 29.01.2018 Date of decision : 31.01.2018 O R D E R No: ..
Per: Ramesh Nair The issue involved in the present case is that whether the product namely Hydent-K Potassium nitrate with fluoride medicated toothpaste manufactured by the appellant is classifiable under Chapter sub-heading 3003.10 or 3306.10 of Central Excise Tariff Act, 1985 and consequently differential duty is payable by the appellant.
2. None appeared on behalf of the appellant however, they submitted a written submission dated 29.01.2018. They also requested to dispose of other two appeals pending with this Tribunal along with the present appeals. We take up all the appeals for disposal.
3. Shri S.V. Nair, Ld. AC (AR) appearing on behalf of the revenue reiterates the finding of the impugned order.
4. On careful conisation of the submission made by both sides, we find that the issue to be decided is whether the product namely Hydent-K toothpaste manufactured by the appellant is medicament classifiable under sub-heading 3003.10 or toothpaste falling under 3306.10. In this regard the appellant relied on the decision of IPCA Health Products Pvt. Ltd. which attained finality in 2001 (135) ELT 1108. Ld. Commissioner (Appeals) has distinguished this judgment on the ground that the ingredients of the product of IPCA i.e. Thermoseal Toothpaste are different from ingredients contained in the appellants product i.e. Hydent-K. In this regard, we find that the captioned product is made of Potassium nitrate B.P. and Sodium Monofluophosphate USP; both of these ingredients are pharmacopeia drugs. These are the main ingredients in the product. In case of product Thermoseal, the product of IPCA, the various ingredients other than active ingredients used were 1) Enamel 2) Cementum 3) Dental pulp and dentin. Comparing the ingredients in both the products, it is observed that the principle agent is Strontium Chloride and Potassium nitrate in the product Thermoseal. In Hydent-K only pharmacopeia drugs were used like Potassium nitrate B.P. and Sodium Monofluophosphate USP. Therefore the product Hydent-K is mainly based on Pharmacopeia drug whereas in Thermoseal in addition to the principle agent, other non-pharmacopeia ingredients were also used. Therefore as per the composition of the product Hydent-K is on a better footing than Thermoseal which has been classified as medicament in the IPCA Health Products Pvt. Ltd. case. Therefore the judgment of IPCA Health Products Pvt. Ltd. is squarely applicable in the facts of the present case.
5. We therefore set aside the impugned order and allow the appeals.
(Pronounced in Court on ..............................) (Raju) Member (Technical) (Ramesh Nair) Member (Judicial) //SR
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E/1052,1053/09 & Ors.