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1. The present reference has arisen out of the decision of this Tribunal in the case of M/s. Tetragon Chemie (P) Ltd. Two Members had differed. One of the Members suggested that the matter should be referred to the Larger Bench in view of the fact that the Tribunal in the case of M/s. Roche Products Limited; in the case of M/s. Glaxo Labs (T) Limited; in the case of M/s. Punjab Bone Mills and in the case of M/s. Protin Kem had held that the goods were classifiable under Heading 23.02 of Central Excise Tariff Act, 1985 (CETA 1985) and that in the case of M/s. Ranbaxy Laboratories Ltd., the Tribunal had held that the goods were classifiable under Heading 29.36 of CETA 1985. Therefore, a reference was made to the third Member who held that the matter may be referred to the Larger Bench. Accordingly, the issue was formulated as "whether preparations of a kind used in animal feeding consisting of one or more vitamins mixed with diluents etc. are classifiable under Heading 29.36 as held in the case of M/s. Ranbaxy Laboratories Limited or under Heading 23.02 as held in the case of M/s. Glaxo Labs (I) Limited and M/s. Roche Products Limited

2. At the outset, the Joint Chief Departmental Representative, Shri B.K. Gupta pointed out that the issue involved in all these matters was decided by the Tribunal in favour of the Revenue in the case of Ranbaxy Laboratories Limited v. CCE ; that against the said judgment of the Tribunal, an Appeal has been admitted by the Supreme Court 1998 (99) ELT A231J. The Id. Advocate. Shri V. Lakshmi Kumaran in fact gave of copy of the Order of the Apex Court admitting the Appeal. The Civil Appeal No. is 2284 of 1995 Dated 25.9.95. He objected to the hearings being proceeded with. Having heard both sides, we overruled the objection raised by the Revenue in the case before us.

74. We find that the disputes arose in view of the clarifications given by the Board under Circular no. 1/90 which was subsequently modified by issue of Circular dated 26.3.1996. With the finding of the Tribunal in the case of M/s. Ranbaxy Laboratories Limited where the Tribunal held that in terms of Chapter note under Chapter 23 of CETA 1985. this Chapter covers only products of a kind used in animal feeding obtained by processing vegetable or animal materials, the interpretation given by the Tribunal in the case of M/s. Ranbaxy Laboratories Limited to these words was that Chapter Note is very clear and specific: that only such items which are obtained by processing of vegetable and animal material will be classifiable under this Chapter. Since the preparations in dispute contain active ingredients which appear to be of synthetic origin, therefore, the Tribunal held that we have to look to other chapters for classification of the products as admittedly the products in dispute contain materials other than those obtained by processing vegetable and animal material. The products in dispute are claimed to contain vitamins, provitamins, concentrates of vitamins, carbohydrates, minerals, proteins etc. The Tribunal, therefore, held that since mixtures were of mainly vitamins and since the product got the specific characteristic of Vitamins being active ingredients, therefore, they were classifiable under Chapter 29.36 and were specifically excluded from heading 23.02 of CETA 1985 in view of the expressions used 'not elsewhere specified'.

TRIBUNALS FINDINGS IN THE RANBAXY LABORATORIES CASE.

108. In the case of M/s. Ranbaxy Laboratories Limited, the issue before the Tribunal was that the assessee had claimed classification of Penta Forte and Famitone under Heading 23.02 of CETA 1985. The Asstt. Collector issued a Show Cause Notice to the Assessee asking him to explain as to why the goods should not be classified under Heading 3003.10. The Assessee had contended that the preparations were animal feed supplements that Heading 23.02 provided the most specific description and. therefore, according to Interpretative Rule 3, most specific description is to be preferred to more general description. The Assessee also contended that the products were exclusively used for animal feeding purposes; that the feed supplement is a formulation of a product which is to be added in the food as a supplement to make it a complete food in the final from; that the feed supplements contain certain items which may be added to the animal feed in micro quantities usually in a concentration of parts to achieve a definite purpose like prevention of diseases, improvement in the performance of livestock, increase in production, increases in weight, increase in milk production etc. It was their case that Penta Forte power, apart from vitamins, the preparation also contains Calcium sulphate and magnesium oxide which an: minerals and that the solvent was soyabean oil; that in the case of Famitone. the active ingredient includes, apart from vitamins, Ascorbic acid and Poly Sorbate and also a solubiliser and that the solvent used in Polyethylene Glycol.