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APPEARANCE Shri B.L.Narasimhan (Advocate) & Shri Ayush Agarwal (Advocate) for the Appellant (s) Shri Pawan Kumar Singh (Supdt.) (A.R.) for the Revenue CORAM:

SHRI ASHOK JINDAL, HON'BLE MEMBER(JUDICIAL) SHRI ANIL G. SHAKKARWAR, HON'BLE MEMBER(TECHNICAL) DATE OF HEARING/DATE OF DECISION : 27.12.2018 FINAL ORDER NO.72935/2018 Per Ashok Jindal :
The appellant is engaged in the manufacture of various products. The dispute before us with regard to the classification of the product namely Hajmola Candy. Initially the appellant claimed the classification of Hajmola Candy under chapter 30 of the Central Excise Tariff Act, 1985 and same has attained finality by order of this Tribunal dated 25.03.1994 reported in 1994 (71) E.L.T. 1069 holding that Hajmola Candy contains 25% active ingredients and 75% sugar merits classification under chapter heading 3003.30 as Ayurvedic Medicine and

2 E/3546/2010-EX[DB] not under chapter heading 1704.90 as sugar confectionary of Central Excise Tariff Act, 1985. Thereafter the appellant continued to classify Hajmola Candy under chapter 30 of Central Excise Tariff Act. Vide show cause notice dated 05.04.2000 in respect of the appellant's Baddi Unit, the Revenue sought to re-classify the said product under chapter heading 2108.90 as miscellaneous edible preparations. The matter was adjudicated and re-classification was vacated. The said order was challenged by the Revenue before this Tribunal and this Tribunal vide its final order reported in 2002 (144) ELT 365 held that Hajmola Tablets (Baddi Unit) is classifiable as Ayurvedic Medicine under chapter 30 of the Central Excise Tariff Act, 1985. The said order has been affirmed by the Hon'ble Apex Court reported in 2002 (146) ELT A-311. Another show cause notice dated 14.10.1998 proposing to finalise the provisional assessment to classify the product namely Hajmola Candy under chapter heading 1704.90 was pending and same was finalized by confirming the classification under heading 1704.90 vide Order-in- Original No.49/GZB-II/99. The said order was challenged before the learned Commissioner(Appeals), who confirmed the order of the adjudicating authority vide order dated 16.01.2003 holding that the Hajmola Candy manufactured by Ghaziabad unit have merit classification under chapter heading 1704.90. The said order was not challenged by either of the sides and attained finality and appellants started classifying their product under heading 1704.90 as sugar confectionary w.e.f. 01.03.2003. Thereafter another show cause notice which is in question was issued on 10.10.2005 for the period 3 E/3546/2010-EX[DB] September 2004 to August 2005 proposing the classification of Hajmola Candy under chapter 3003.39 for the period September 2004 to February 2005 and under chapter 30039011 for the period March 2005 to August 2005. The adjudicating authority confirmed the classification proposed in the show cause notice. Against the said order, the appellant is before us.

3. On the other hand the learned A.R. reiterated the findings of the impugned order.

4. Heard the parties and considered the submissions.

4 E/3546/2010-EX[DB]

5. On consideration of the submissions made by both the sides fact of the case are not in dispute that the merit classification of Hajmola Candy in question is under chapter heading 3003.90 of Central Excise Tariff Act, 1985 as Ayurvedic Medicine, but while finalizing the assessment for the appellant the learned Commissioner(Appeals) vide its order dated 16.01.2003 held merit classification under chapter heading 1704.90 as against claim of the appellant under chapter 30 and the said order of the learned Commissioner(Appeals) was not challenged by either of the sides. Only on 10.10.2005, a show cause notice was issued to classify the product Hajmola Candy for the period September 2009 to August 2005 under chapter heading 3003.90 of Central Excise Tariff Act, 1985 as Ayurvedic Medicament. Therefore, the short issue raised before us is whether the show cause notice dated 10.10.2005 can be issued to the appellant for the period September 2004 to August 2005 or not?