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7. Learned SDR filed a host of documents and, relying thereon, submitted that M/s. DXN had claimed their products to be food supplements before various other Government departments/bodies and obtained certificates on that, basis. These documents include (i) certificate of registration dated 17-1-2002 issued to M/s. DXN by the Deputy Commercial Tax Officer - Registrations, Pondicherry under the Central Sales Tax Act, (2) similar certificate under the Pondicherry General Sales Tax Act, (3) trade licence dated 30-3-2002 issued to M/s. DXN by the Commissioner, Mannadipet Commune Panchayat, Pondicherry, under the Pondicherry Village & Commune Panchayats Act. (4) letter dated 25-3-2002 issued to M/s. DXN by the Electricity Department, Govt. of Pondicherry, allowing power supply to the company for its proposed industry, (5) 'No Objection Certificate (NOC) dated 5-2-2002 issued by the Pondicherry Pollution Control Committee, Department of Science, Technology and Environment, Govt. of Pondicherry, granting clearance to the company for setting up such industry (6) permit dated 27-9-2001 issued to M/s. DXN by the Entrepreneurial Assistance Unit, Ministry of Commerce and Industry, Govt. of India, for setting up a unit for manufacture of 'food supplement capsules made from natural mushroom'; (7) provisional NOC issued to DXN by the Deputy Director of Industries & Commerce for setting up of manufacturing unit. (8) permit dated 26-3-2002 of the Commune Panchayat to DXN for construction of factory, and (9) permit dated 10-1-2002 issued to DXN by the General Manager, District Industries Centre, Govt. of Pondicherry for use of agricultural land for industrial purpose and for drawal of water from bore well for such purpose. The documents filed and relied on by the SDR also include a certificate issued in October, 2001 to M/s. Daehsan by the Director of Drugs Control, Tamil Nadu certifying that RG and GL were only food supplements. Reference was also made to a Bill of Entry dated 5-2-2002 filed by M/s. Daehsan, which covered import of goods declared as 'DXN RG' and 'DXN GL' and classified under Heading 21.06 of the CTA Schedule. Learned SDR also referred to the confessional statements of certain functionaries of M/s. DXN and M/s. Daehsan, wherein it was admitted that the goods in question were food supplements. Relying on a letter of the Director of Drugs Control, Tamil Nadu, addressed to the DGCEI, learned SDR submitted that M/s. Daehsan had obtained a Drug Loan Licence from the Directorate of Drugs Control, Chennai in December, 2001 for manufacturing RG & GL as APMs; that the said licence was subsequently transferred to M/s. Roshan; that, in terms of such licence, M/s. Roshan started commercial manufacture of RG and GL as APMs through M/s. Madras Pharmaceuticals from February, 2002 and that what they did was only relabelling, as APM, of RG & GL capsules imported by Daehsan as food supplements. In this context, it was also reiterated that M/s. Daehsan had obtained the above licence on the basis of concocted clinical trial reports of two medical practitioners as well as on the basis of a baseless claim that the botanical names of what were said to be the ingredients [Chatraka and Buchatra] of RG and GL had been mentioned in Ayurvedic texts. Learned SDR also referred to the opinion given by the Head of the Department, Ayurveda to the effect that Chatraka and Buchatra were basically food supplements, which could not, by themselves, be used independently to cure any disease. In support of her claim for classification of the subject products under Heading 21.08 of the CETA Schedule [corresponding to Heading 21.06 of the HSN], learned SDR relied on Note 16 under HSN Heading 21.06 as well as Note 1(a) in Chapter 30 of the CETA Schedule. Finally, learned SDR relied on the following decisions of the Tribunal:

The above documentary evidence of DXN having emphatically held out through their marketing agency (Daehsan) and the latter's stockists/distributors before the general public that their products viz. RG & GL capsules were strictly herbal food supplements and recommended as drugs stands unrebutted and overrides am oral evidence to the contra given by any Daehsan functionary or stockist/distributor in cross-examination. It is trite law that documentary evidence would prevail over oral evidence.
8.2 Before various public authorities also, M/s. DXN declared their industrial activity as manufacture of "food supplements". The certificate of registration dated 17-1-2002 issued by the Central Sales Tax authorities to M/s. DXN mentions their business as "manufacture of food supplement capsules made from natural mushroom". This certificate indicates that it is valid from 17-1-2002 till its cancellation. M/s. DXN have not claimed that the above certificate was cancelled at any point of time. The trade licence issued to M/s. DXN by the Commissioner, Mannadipet Commune Panchayat under the Pondicherry Village and Commune Panchayat Act on 30-3-2002 is also in respect of "manufacture of food supplement capsules made from natural mushroom". This licence is seen to be valid upto 31-3-2003 covering the entire period of dispute. It is noticed that, on 24-9-2004, the Panchayat upon the licensee's application altered the name of the goods to "ayurvedic drug" in the licence. This amendment, however, has no retrospective effect, nor any impact on the Revenue's evidence in this case. The letter dated 25-3-2002 issued to the party by the Electricity Department, Govt. of Pondicherry granting power supply to their factory also indicates that the power supply was made available for the "manufacture of food supplement capsules made from natural mushroom". The NOC dated 5-2-2002 issued by the Pondicherry Pollution Control Committee to M/s. DXN is also in respect of "manufacture of food supplement capsules made from mushroom powder". The name of the products in this document also is seen to have been amended as "ayurvedic drug (mushroom)" by the said authority on 21-9-2004 upon the party's request. This amendment is also as inconsequential as the aforesaid amendment of Panchayat's licence. The letter dated 27-9-2001 issued to M/s. DXN by the Entrepreneurial Assistance Unit under the Ministry of Commerce and Industry, Govt. of India, is the acknowledgement of receipt of Industrial Entrepreneurial Memorandum for the "manufacture of food supplement capsules made from natural mushroom". With reference to this IBM acknowledgement, the Deputy Director of Industries and Commerce issued a provisional NOC to the party to set up a medium scale unit in Pondicherry for the "manufacture of food supplement capsules made from natural mushroom". Here, again, we notice a change of nomenclature allowed by the Assistant Director of Industries & Commerce, who, with reference to DXN's letter dated 8-6-2004, wrote to them saying that he had no objection for change of the products' name from "capsule made from natural mushroom'" to "ayurvedic drugs". This, again, has no relevance to the period of dispute in this case. The permission issued by the panchayat on 26-3-2002 to M/s. DXN is for the construction of factory as per approved plan, for the "manufacture of food supplement capsules made from natural mushroom". The letter dated 10-1-2001 issued to the party by the District Industries Centre, Govt. of Pondicherry granting permission for use of agricultural land for industrial purpose also mentions such purpose as manufacture of "food supplement capsules made from natural mushroom". All these constitute irrebutable evidence of M/s. DXN having set up their factory for the manufacture of food supplement capsules from natural mushroom, with the requisite clearance/licence permission/NOC from the governmental bodies/departments/agencies concerned. DXN cannot turn their back on the stark reality of having acted upon, and derived the benefit of, such licence, permission etc. during the period of dispute.
8.3 According to the tests laid down by the Hon'ble Supreme Court to identify an ayurvedic medicine, a given product can be held to be ayurvedic medicine classifiable under Heading 30.03 of CETA Schedule if (a) it is treated as ayurvedic medicine by the public and (b) its ingredients find mention in authoritative textbooks on ayurvedic medicines vide Naturelle Health Products arid other judgments cited in para (4) of this order. We shall proceed to apply the first test (common parlance test) now. It is an admitted fact that M/s. DXN were importing RG and GL powders and marketing the same in India as food supplements prior to the period of dispute. Their Managing Director, Shri Lee Hock Lye has stated that, even during the period of dispute, they have not advertised that the RG/GL capsules have therapeutic properties. Their Chief Executive Officer, Dr. Lim has also stated to this effect. Shri Abdul Rahman Puvarasan B. Abdulla, Director & Country Manager, Daehsan (sole selling agents for DXN, Pondicherry) has also stated that they have not advertised the subject goods as medicines or products, with therapeutic value. Shri Surya Prakasa Rao, Authorised Signatory of Daehsan (Andhra Pradesh) has stated that they were marketing RG and GL capsules as food supplements till DXN changed the classification of the products as APM. None of these statements was ever retracted. The stockists/distributors of the DXN products also stated that they were marketing the goods as food supplements till the change of classification announced by DXN. None of them has resiled from this position even when cross-examined. Thus it is abundantly clear that, till they started manufacturing RG and GL capsules as APMs, M/s. DXN were advertising and marketing the items in India as food supplements only. In fact, they did not want the consumers in the country to use the items as drugs, which is evident from the instructions their selling agents (Daehsan) issued to their distributors, [see the text of these instructions given in para (8.1) of this order]. Thanks to the conduct of M/s. DXN and their selling agents and distributors, the products inevitably came to be accepted as food supplements in the society of consumers. But, suddenly, DXN made a volte-face and started manufacturing the same products as APMs in March, 2002. But vox populi cannot be expected to change at this speed. In any case, M/s. DXN have not established that their change of nomenclature of the products from food supplements to ayurvedic drugs was accompanied by a corresponding change in common parlance also. On the other hand, it is on record that M/s. DXN made various public authorities act upon their declaration that they were setting up an industrial unit in Pondicherry for manufacturing food supplements from natural mushroom vide para (8.2) of this order. These public authorities like Commune Panchayat Commissioner were given to believe, over the entire period of dispute, and coterminously with the common parlance, that M/s. DXN were manufacturing food supplements in their Pondicherry factory. We, therefore, reject the appellants contention that the subject products were known in common parlance as ayurvedic medicines. That mushroom products are known as food supplements in commercial parlance is also obvious from an advertisement by M/s. PM Herbals Private Limited, Velachery, Chennai (copy produced by SDR), which places 'Shitake', 'Agaricus' and other mushroom products under the category of "food supplement". This ad is reproduced below:
9. For the reasons noted by us hereinbefore, we hold that the DXN products viz. RG Capsules and GL Capsules are appropriately classifiable as 'food supplements' under SH 2108.99 of the CETA Schedule and assessable under Section 4A of the Central Excise Act for payment of duty.
10. The SCN in this case invoked the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, alleging that M/s. DXN Pondicherry had intentionally misdeclared and misclassified RG & GL as APM with intent to obtain Central Excise registration for manufacture of APM as well as to evade payment of Central Excise duty. We have already noted that the drug licence was obtained by M/s. DXN from FDA, Pondicherry on the basis of forged/faulty clinical trial reports. The evidence gathered by the investigators from Dr. D. Athisayaraj, Dr. P. Selvakumar, Dr. S.S. Raviselvan and Shri Dheenadayalan, Asst. Commissioner, FDA Pondicherry has established the fraud committed by M/s. DXN. We have already held in the facts and evidence on record that it was not open to DXN to claim classification of the goods as APM on the strength of their drug licence vide para (8.6). When they declared Ganoderma and Shiitake as Chatrakh and Bhuchatra before the Drug Control/Central Excise authorities after having declared RG/GL capsules as food supplements before a host of other governmental agencies and having groomed the products as food supplements in the public mind, they knew very well that Chatrakh and Bhuchatra were food supplements only. As we have already indicated vide para (8.5), such declaration was a misdeclaration. DXN misdeclared food supplements classifiable under SH 2108.90 as ayurvedic proprietary medicines under SH 3003.39. This misdeclaration was obviously made with intent to evade payment of Central Excise duty leviable on food supplements. In the circumstances, we do not find fault with the Commissioner having invoked the extended period of limitation against M/s. DXN. Accordingly, we sustain the demand of duty raised on the assessee in respect of RG & GL capsules removed from their factory from March to July, 2002. From our findings already noted, it would follow that the Commissioner's order vacating the protest registered by M/s. DXN while paying duty on the products for the subsequent period is sustainable.